The first successful transplant was a cornea in the early 1900s. However, legislation governing the donation of corneal tissue was not developed until the 1950s with the creation of eye banks. As technology and science progressed into the 1960s, with the first heart transplant taking place in Cape Town, South Africa in 1967, there was a need for legislation that would govern the donation of other types of tissue.[i] 

Ontario became the first province to create a Human Tissue Act in 1962 which was based on the United Kingdom’s 1961 Human Tissue Act. Following Ontario’s lead, a request was made to the Uniform Law Conference of Canada (ULCC) to draft Uniform legislation on organ donation.[ii] The ULCC is a conference attended annually by representatives from each government, it was founded in 1918 to assist provinces and territories in developing legislation that could be adopted by each province/territory so that laws would be uniform across the country.[iii] Draft uniform legislation was presented at the 1965 Uniform Law Conference, and as with Ontario’s legislation, focused solely on the donation of tissue and organs from deceased donors. The legislation set out who could legally consent to the donation of tissue after the donors death. The uniform legislation was adopted by Ontario, Newfoundland and Labrador, Manitoba, Saskatchewan, Alberta, British Columbia and Northwest Territories in the late 1960s.

In 1970, the Medico-Legal Society of Toronto—a group of doctors and lawyers that promoted cooperation between the professions in the best interests of patients—proposed new legislation to the Government of Ontario and the ULCC. The aim of the new legislation was to include donations from living donors (specifically kidney donations at that time). However, the legislation specifically excluded “skin, bone, blood, blood constituents or any other tissue that is replaceable by natural processes of repair” from the definition of “tissue,” meaning that the legislation did not cover the donation of those body parts. The legislation also prohibits the sale of “any body part”, except for blood and blood constituents. At the time, the choice to exclude blood was a result of the decision not to interfere with the practice of donating and selling blood.[iv] The ULCC published the proposed legislation with minor changes in 1971. Eight jurisdictions – Alberta, Ontario, Newfoundland and Labrador, British Columbia, Northwest Territories, Saskatchewan, Yukon, and Nova Scotia, adopted the uniform act with no debate of the tissue exclusions.

In 1987, Manitoba was the first to exclude embryos, fetus, sperm, ova and placenta from the application of their Human Tissue Gift Act. The amendments were a result of recommendations made by the Law Reform Commission of Manitoba. The Commission had chosen not to adopt the 1971 Uniform Human Tissue Act, finding that the recommended uniform legislation failed to deal with “regenerative” tissue donation. Use of the term “regenerative” tissue allows for the differentiation between the temporary loss of tissue like blood, bone marrow, skin or sperm, which regenerates itself, versus non-regenerative tissue, like kidneys, which are irreplaceable and are permanently lost after donation. The rationale for treating the two types of tissue differently is because of the supposed difference in the risk of donating. The ULCC chose not to include regenerative tissue in their 1971 uniform legislation since they believed the risk in donating regenerative tissue is less. However, the Law Reform Commission of Manitoba felt that regenerative tissues, particularly bone marrow and skin, should be included in the legislation due to the risk of harm as a result of the painful donation process of these regenerative tissues.

The Commission also recommended prohibiting the sale of tissue, making it clear that to allow the sale of human tissue would only encourage blackmail, coercion or duress; increase the possibility of donors lying or concealing health defects (thus increasing the danger to recipients); as well as wrongly encourage donations from the poor. However, blood and blood constituents were excluded from the prohibition. The Commission maintained the exclusion of blood and blood constituents from the legislation since it was felt that new legislation was not needed given the already routine nature of blood donation.[v]

In the case of gametes, embryos and fetal tissue, the consensus of Manitoba’s Law Reform Commission appears to be that a greater value should be placed on these reproductive tissues as compared to human tissue generally. The complexity of legal and ethical issues surrounding reproductive tissues led to the decision not to include them in the Human Tissue Gift Act. Complexities mentioned by the Manitoba Law Reform Commission included the need to differentiate between the types of medical research and treatment allowed with the embryo and fetus, as well as determining the various stages of development, and the need to know when fetal death occurs.[vi]

In the same year (1987) the ULCC began to look at amending their 1971 Uniform Human Tissue Act. The ULCC looked to the recommendations from Manitoba’s Law Reform Commission, as well as reports from the Federal/Provincial Advisory Committee on Institutional and Medical Services, the Alberta Human Tissue Procurement Task Force, and Ontario Minister’s Task Force on Kidney Donation. The focus of the legislative amendments was to make changes that would increase organ donation rates, including issues around consent including “opt-in” models for organ donation and other hospital procedures.[vii] Only Manitoba’s Law Reform Commission report discussed the rationale for excluding tissues from the application of the legislation. Yet, in 1989, the ULCC presented amended legislation which excluded spermatozoa, ova, embryo, fetus, blood and blood constituents. Presumably the ULCC agreed with Manitoba Law Reform Commission’s rationale for excluding the tissues, but notably chose not to include placenta as Manitoba’s Government had chosen to do. Unlike the 1971 Uniform Human Tissue Legislation, jurisdictions were not quick to adopt the ULCC’s Uniform legislation. To date, British Columbia, Newfoundland and Labrador, Yukon, and New Brunswick have not amended their tissue exemptions since adopting the 1971 Uniform Human Tissue Act. 

The uniform legislation–both the 1971 and 1989 versions–still serve as a foundational legislation guiding organ and tissue donation in most Canadian provinces. Yet, the exemptions that allow for the sale of certain tissues (i.e., certain reproductive tissues, blood and blood constituents) have opened the door to pay-for-plasma. (A note on reproductive tissues: in addition to the exemptions on reproductive tissues in the uniform legislation, the 2004 Assisted Human Reproduction Act prohibits payment for eggs, sperm, and embryo).

References

[i] John B Dossetor & Dennis L Modry, “Transplantation” (last modified 16 December 2013), online: The Canadian Encyclopedia < www.thecanadianencyclopedia.ca/en/article/transplantation >.

[ii] Uniform Law Conference of Canada, 1963 Proceedings of the Forty-Fifth Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada, (Edmonton: 26-29 August 1963). [online: www.ulcc.ca/images/stories/Past_Proceedings_PDF/1963ULCC0045.pdf ]

[iii] Uniform Law Conference of Canada, “History of the Conference” (last visited 09 August 2019), online: Uniform Law Conference of Canada < www.ulcc.ca/en/about-us-en-gb-1/history-of-the-conference >.

[iv] Richard B Middleton et al, “Provincial law for giving transplant material moving toward uniformity” (1973) 108 CMA Journal 1455. [online: www.ncbi.nlm.nih.gov/pmc/articles/PMC1941533/pdf/canmedaj01669-0116.pdf ]

[v] Law Reform Commission of Manitoba, Report on The Human Tissue Act, Report 66 (1986). [online: www.manitobalawreform.ca/pubs/pdf/archives/66-full_report.pdf ]

[vi] See above at pages 11 - 12.

[vii] Uniform Law Conference of Canada, Proceedings of the Sixty-Ninth Annual Meeting, (Victoria: 8-14 August 1987). [online: www.ulcc.ca/images/stories/Past_Proceedings_PDF/1987ULCC0069.pdf ]