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Document "A fair compensation. Considerations for a proposal to give living kidney donors priority for transplantation.": English Abstract
Patients in the Netherlands requiring a donor kidney spend three to four years on average on the transplant waiting list for a kidney from a deceased donor. Postmortem donor kidneys are in short supply. Consequently, over the past 15 years, it has increasingly been the case that living persons have donated a kidney. More than 58 percent of kidney donations in 2010 came from live donors. This development begs the question as to whether these donors ought to be given priority on the donor kidney waiting list in the event of subsequently suffering from severe renal insufficiency. This has been proposed by Eurotransplant, a collaborative organisation for the international exchange of donor organs, with which the Netherlands is affiliated. This led the Minister of Health, Welfare and Sport to request an advisory report from the Health Council of the Netherlands at the end of 2009. When allocating donor kidneys, are there any medically or morally valid reasons for taking into account that a person earlier in his life has donated a kidney? And is it legally possible to award these donors extra points on the waiting list?
Likelihood of live donors subsequently suffering renal insufficiency
The Committee has considered the effects and risks of kidney donation in the case of live donors. What is the probability of complications and death as a result of the surgery? What is the effect on the donor’s life expectancy? And, left with only one kidney, what is the risk of the donor developing severe renal insufficiency, and possibly needing renal replacement therapy?
Research among living donors indicates a low risk of complications and death as a result of the operation, in comparison with other frequently performed surgical interventions. Likewise, the loss of a kidney does not appear to make the donor more susceptible to disease or early death. However, in comparison with the present donor population, the donors in these studies were more stringently selected on the basis of their health and physical condition and screened for any disorders. Potential donors are currently more often accepted with what were previously deemed to be contraindications (higher age, mild hypertension, moderately overweight). This appears not to affect the outcome of these transplants. However, it means that some of the present live kidney donors may face a higher health risk in the future and have a lower life expectancy than the populations in the cited studies.
Another conclusion which can be drawn from research is that removing a kidney from selected donors does not, as a matter of course, increase the likelihood of progressive or accelerated loss of renal function in the long term. In fact, the residual capacity of the remaining kidney continues to provide sufficient renal function for the rest of the donor’s life. The likelihood of a prior live donor nevertheless developing renal failure is extremely small (between 0.1 and 1.1%). Complications can be prevented or treated in good time by offering the kidney donor lifelong checkups.
Although having only one kidney does not in itself adversely affect normal functioning, it does make the donor more vulnerable if the remaining kidney’s functioning is jeopardised, by a tumour in the kidney or de novo renal disease, for example. In that case, the donor may suffer accelerated or even acute loss of renal function because there is no reserve capacity. As an indirect consequence of donation, the donor would have to resort to dialysis earlier, and therefore experience the disadvantages of dialysis sooner than patients with the same disorder and two kidneys. The patient’s reduction in life expectancy would consequently be more substantial.
On average, there are currently one or two prior live kidney donors a year who themselves are in need of a new kidney. One should make allowances for an increase in this number to four a year on account of relaxing the acceptance criteria for living donors.
Eurotransplant proposal
In practice, Eurotransplant’s proposal means that people who donated a kidney earlier in life and later on need a transplant owing to renal failure should be awarded 500 points on the waiting list for a postmortem donor kidney. This means that they could qualify for a transplant without having to undergo prior dialysis (pre-emptive transplant). In the present situation, a patient with end-stage renal failure spends his waiting time while on dialysis treatment, which, although a life-saving therapy, is burdensome and in the long run harmful.
Awarding 500 points would mean that live donors are to be placed on the waiting list immediately below patients in one of the special priority groups, namely people classified as medically highly urgent or those with very little chance of receiving a suitable donor kidney. These patients would have priority over former donors because they would be at greater risk or more disadvantaged if left out when the offer of a suitable donor occurred. Nevertheless, the likelihood of a former donor being offered a kidney within six weeks would still be high.
If one former live donor a year would be given priority on the waiting list, this would increase other patients’ waiting time by approximately one and a half days, against a total waiting period of three to four years. That waiting period would increase by three days in the case of two patients receiving a donor kidney before them. If this number were to rise to four per year, the waiting period would increase by around six days. Therefore, the adverse consequences for the remaining individual waitlisted patients of awarding 500 points to prior donors would turn out to be very limited.
Moral arguments
The Committee has listed and assessed the moral arguments in favour of awarding 500 points to former donors. One of the arguments is the potential to promote donations by living donors. This is not a sufficiently convincing argument in the eyes of the Committee, as the likelihood of the former donor developing renal failure is so small. The extra points are therefore unlikely to play a determining role in the decision to donate a kidney. The reward argument (i.e. rewarding living donors) is likewise invalid in the Committee’s opinion. Rewarding living donors would be in breach of the principle of formal justice. It would mean granting people a higher place on the waiting list because they have a special negotiating position which enables them to ‘buy’ a more favourable position, rather than because they possess some relevant characteristic that may be determining for their priority on the waiting list, such as medical need or the waiting period.
The Committee takes the view that reasoning on the grounds of compensation, supplemented by the argument of fairness, does provide a morally valid argument for awarding 500 points to former donors. The grounds for such reasoning are that it would be no more than fair to compensate a former donor with end-stage renal failure for having lost his reserve capacity as a result of the donation, which will turn against him when renal insufficiency develops. This donor will need dialysis sooner than patients with the same disorder and two kidneys, on account of the donor no longer having any reserve capacity. Because of this, the disadvantages of dialysis will affect the former donor at an earlier stage and his life expectancy will be reduced more substantially. This is particularly difficult to accept and also unfair since, by donating a kidney, the former donor has contributed to drastically reduce the average time kidney patients had to wait for a postmortem donor kidney. After all, every time a waitlisted patient succeeds in finding a willing live donor, the other people move one place up the waiting list. Without the contribution made by living donors, the waiting period in the Netherlands would be twice as long, making it six to eight years. As patients on the waiting list benefit jointly from the sacrifice made by living donors, the Committee is of the opinion that it is also fair for these patients to bear the burden of compensation in the form of a slightly longer waiting period.
What should the extent of compensation be? At first sight, awarding 500 points might appear to be overcompensation. However, ultimately, one is faced with accepting that prior live donors will be worse off than other kidney patients because they have to start dialysis treatment sooner, or accepting that they should be moved up in a better position. This is therefore a choice between ‘undercompensation’ and ‘overcompensation’. On the grounds of fairness, the Committee favours the latter choice. It would be unfair to allow the existing organ scarcity to affect people who have made a considerable contribution to reducing the scarcity and consequently face additional problems.
According to the Committee, awarding extra points to former kidney donors would not set an undesirable precedent. The Committee has not been able to find any examples which are completely analogous with the situation of live kidney donors who have developed renal failure.
Legal aspects
To what extent does current law provide scope for awarding extra points to former kidney donors? This mainly concerns the extent to which the proposal is reconcilable with section 18, subsection 3, of the Dutch Organ Donation Act, and article 3 of the Additional Protocol on Transplantation of Organs and Tissues of Human Origin (relating to the European Convention on Human Rights and Biomedicine).
No unambiguous answer to this question is possible in the Committee’s opinion. Interpretation of the Dutch Organ Donation Act may follow either strict principles or a more liberal reading. Those who support strict principles will adhere more to the letter than the spirit of the law. They may conclude that the wording of section 18, subsection 3, provides no scope for Eurotransplant’s proposal. However, the Committee presents arguments for a more liberal interpretation of this section. The Committee concludes that the proposal is indeed reconcilable with the principles of medical law and the spirit of this section and is therefore of the opinion that the Dutch Organ Donation Act need not be amended for the proposal to be accepted.
Likewise, the Committee does not believe that awarding extra points would be in breach of article 3 of the Protocol, which states that organs must be allocated on the basis of medical criteria. After all, allocation is based on the donor’s medical needs and also takes into account the medical needs of other waiting patients.
Conclusions and recommendations
The Committee concludes that there are sound medical-ethical and legal arguments for accepting Eurotransplant’s proposal to award 500 points to live donors with end-stage renal failure. Adopting this approach means that donors would qualify for a pre-emptive transplant of a postmortem donor kidney. The Committee is of the opinion that the proposal is reconcilable with national and international legal rules and the principles on which they are based. Consequently, the Dutch Organ Donation Act need not be amended in order to adopt the Eurotransplant proposal.
The Committee recommends incorporating Eurotransplant’s proposal into the current system for allocating postmortem donor kidneys. Upon implementing the extra points scheme, the need for lifelong medical monitoring should once again be brought to the attention of all parties involved in health care provision, especially donors/prospective donors. The Committee also takes the view that further medical follow-up studies of live kidney donors are of crucial importance if the criteria for live kidney donorship continue to be extended, in order to guarantee that living donors retain an equally good life expectancy rate as people who have not donated a kidney.

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