Rónán Mullen (Independent)

I welcome the Minister of State to the House and commend Senator Quinn on bringing forward for debate this timely and worthwhile issue in the form of his Bill. As other speakers have noted, this is a deeply sensitive and important issue. It was great to hear the different speakers speak from their own experiences and with reference to stories concerning their families, friends and loved ones. This issue touches most people in our society because one either has been personally affected by it or knows someone who has had the benefit of an organ transplant or has a loved one who was a donor. I also wish to thank Senator Quinn for having organised an excellent briefing session on the issue yesterday. Sadly, people are extremely busy at present as a great deal is happening and it was a pity that more people did not attend it because it was a fine briefing session. It was highly informative regarding the intent behind the Bill and in taking Members through its specifics.

I come to this debate as one who perceives it as an important starting point. I echo fully Senator de Búrca's comments on the need for public consultation before arriving at definitive legislation on this subject. Whereas I may have some concerns about some aspects of the Bill, which I intend to outline to the House, I do not do so in an adversarial sense, but rather in the spirit of promoting a full debate on the complex and sensitive issues this change of policy would imply. While a number of issues are of particular concern, I hope the relevant Department will consider today's debate and take it forward, as Senator de Búrca has proposed, to a wider consultation that will lead to legislation in this important area.

I will make a number of points. The essential proposal in Senator Quinn's Bill is that we would change from an opt-out principle to one of opting-in, which in general would be highly desirable. The idea that one would presume that someone would consent to have his or her organs used, transplanted and given to another person to save another life in the event of his or her death, strikes me as one which extols the human virtue of solidarity with other people. It is right and proper that as a society, we would presume a generous intent on the part of people when such tragic circumstances arise as to give rise to the possibility of the donation of an organ.

However, Members must think carefully about what the Constitution requires and perhaps what natural justice requires in respect of what should happen when the potential donor is a child and what should happen when a child has not indicated consent one way or another. At the briefing yesterday, I was given to understand that Senator Quinn would propose that when a child had not given a view on whether there should be a donation in the event of his or her death and when parents had not recorded an opt-out and when a parent or next of kin was not present in the event of a tragic accident or so on, it might then be possible for professionals to proceed in an orderly and regulated way to facilitate the transplant. Were that the case, I would be concerned. This must be discussed in greater detail to decide who precisely should be consulted and perhaps whether the presumption should be of an opt-out, rather than an opt-in, unless parents are present to give permission for it in such an event. However, I recognise there are different sides to that argument.

A question that I find fascinating and which I believe will be highly important is that of when death occurs. While I am aware this matter is not dealt with in the Bill, it is a central question, the resolution of which hangs over the entire debate. An interesting debate is taking place on the question of what constitutes death and whether what has been termed brain death actually constitutes death. This undoubtedly is connected with the fact that many cases have occurred in which people who were in what might be called a vegetative state, a semi-comatose or a fully comatose state, even for long periods of time, have made a recovery.

There have been some recent publications in this regard and I wish to draw Members' attention to one in particular. I refer to an Italian work, Finis Vitae: Is Brain Death Still Life?, which was published in English by the Council for Research in 2006. The Council for Research is not an ecclesiastical body although it certainly receives contributions from Catholic church sources in Italy. It is interesting to note that the definition of brain death which has been embraced in medicine over the last 40 years has been accepted by the church. Its viewpoint in this area should coincide with those who come from a more secular perspective because there no great dogmatic principle is in dispute and the idea that life is sacred and that one should not take innocent life is a principle with which most civilised people will agree.

What is interesting is that people are beginning to question whether what has been called brain death is or can constitute death. Professor Roberto de Mattei, who contributed to the aforementioned book, discussed the provenance of the notion of brain death. In 1967, after the first heart transplant was successfully performed in South Africa, questions were raised about how to ethically acquire organs for transplant, given the short window of time in which they must be transplanted. The problem arose that if a person was near death but not yet dead and if such a person was killed for his or her organs, this obviously would constitute the killing of an innocent person. There were two options, that is, to change the moral law making it licit to kill the innocent or to change the criteria for ascertaining death. This is what led to the choosing of what might be called by some a utilitarian justification. Since lives would be saved, the social construction of brain death was created and developed to meet the need of transplanters during the procedures' developmental stages.

The first article on brain death appeared in 1968 in the Journal of the American Medical Association and was entitled "A definition of irreversible coma". Dr. Paul Byrne of St. Vincent's Medical Center, Ohio, is a neonatologist and was another contributor to Finis Vitae: Is Brain Death Still Life?. He was invited by the Pontifical Academy of Sciences in February 2005 to speak on the issue and stated that brain death is not true death but a fiction concocted essentially to facilitate transplantation. These points represent some of the emerging debate. A recent publication in the New England Journal of Medicine makes the same point, albeit from the perspective of people who support transplantation. They state it is not sensible to locate the ethical basis for transplantation on the idea that brain death constitutes death, because they are of the view it does not. Where does that leave one?

I only make this point as someone whose heart is with the concept of presumed consent. Those who disagree with me might suggest taking my heart and leaving the rest. However, from that perspective, I suggest that were there a possibility that what is called brain death might not be death and were there a possibility of recovery, it might have implications for the concept of presumed consent. Were that to be the case, it might be better not to presume consent and to rely on the principle that greater love than this——