Human Tissue Gift Act

In British Columbia discussion regarding organ and tissue donation within the government has been focused on the need to increase donation rates through hospital procedure and policy changes, or through the model around consent (i.e. opt-in or opt-out models of consent, online registries, etc.).[i] As such, there have been no changes to the definition of “tissue” since BC adopted the Uniform Law Conference of Canada’s 1971 Uniform Human Tissue Gift Act.

Given the current status of British Columbia’s Human Tissue Gift Act, beyond those body parts clearly excluded from the definition of “tissue”, sperm and bone marrow may also be excluded as they may be considered “replaceable by natural processes of repair”. There is also some debate as to whether or not ova would be excluded as well, some argue ova are “replaceable” even if there are a finite amount.[ii] Yet, regardless of whether or not these tissues are excluded from the definition of “tissue”, the prohibition on sale extends to any tissue or any “body or parts”, which arguably would prohibit sale of those exempt tissues. However, the legislation is certainly not clear on whether the exempt tissues are included in the prohibition. The only “body part” that is clearly excluded from the prohibition on sale is therefore blood and blood constituents, meaning blood and plasma could be sold in British Columbia under this Act.

Voluntary Blood Donation Act & Its Exemptions

Since British Columbia’s Human Tissue Gift Act left the sale and donation of blood and blood products unregulated, in 2016 the legislature began to debate whether they would allow private companies to set up plasma clinics which allowed for paid donations. As in other provinces, those in favour of passing legislation to prohibit the practice of paid donations considered the Krever Report as the main basis for argument, as well as recommendations from the World Health Organization and Red Cross. Other key arguments for the implementation of such legislation included that paid-plasma clinics would reduce the number of voluntary blood donors, that paid donations take advantage of low income individuals, that there is no guarantee that the donated plasma would be used in BC (but would instead be sold to the highest bidder), and that paid donations are less safe. Those who opposed the legislation argued that paid donations are equally safe, that regulations for plasma donations could be easily put in place, and that compensation for time spent donating is reasonable.[iii] Two years later, in 2018, the Voluntary Blood Donations Act was passed.

The implementation of the Voluntary Blood Donations Act closes the gap in the prohibitions on sale found in the Human Tissue Gift Act, assuming that “any body or parts” is wholly inclusive of reproductive tissues (gametes, fetus, embryos, etc.), meaning sale of any body part in British Columbia is illegal. However, since skin and bone, and “other tissue that is replaceable by natural process of repair”, are excluded from the application of the Human Tissue Gift Act, this leaves a gap in regulations for donation of those tissues.

While the Voluntary Blood Donations Act prohibits the sale of blood and blood constituents in British Columbia (similar to legislation in Ontario), the legislation includes an exemption for Canadian Blood Services (CBS) and its agents, legally permitting them to operate for-profit clinics and pay individuals blood and plasma donations. CBS did not initially exercise this exemption. In 2022, however, CBS entered into a 15-year agreement with Grifols, a Spanish pharmaceutical company, with the objective of establishing additional for-profit plasma collection clinics nationwide. Under this agreement, Grifols acts as an agent of CBS, which enables Grifols to legally open for-profit plasma clinics, notwithstanding British Columbia’s general prohibition on the sale of blood and blood constituents. Grifols has indicated that it has no immediate plans to open such clinics in British Columbia, but should they choose to do so, it would be legally permissible under current legislation.

References

[i] See Legislative Assembly of British Columbia, Official Report of Debates of the Legislative Assembly, “Bill 43, An Act to Amend the Human Tissue Gift Act“, 2nd reading, 30:3 (10 October 1973) at 538; also see Legislative Assembly of British Columbia, Debates of the Legislative Assembly, “Bill 50, Miscellaneous Statutes Amendment Act (No. 3), 1998”, 36:3, vol 12, no 9 (28 July 1998) at 10604.

[ii] Ontario Law Reform Commission, Report on Human Artificial Reproduction and Related Matters, Volume 1 (1985) at 60. [online: www.ontla.on.ca/library/repository/mon/27010/40633-1.pdf ]; Law Reform Commission of Canada, Medically Assisted Procreation, working paper 65 (Ottawa: 1992) at 47 – 49. [online: www.lareau-legal.ca/LRCWP65.pdf ]

[iii] See Legislative Assembly of British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), “Blood Supply and Paid-donor Plasma Clinics”, 40:6, vol 42, no 5 (28 February 2017) at 13903; Legislative Assembly of British Columbia, Official Report of Debates (Hansard), “Bill 29, Voluntary Blood Donations Act”, 2nd Reading, 41:3 (8 May 2018) at 4434.