Organ donation – Can my decision be changed after my death?

Many people wish others to benefit from their passing and register to become an organ and/or tissue donor on the Donor Register. The donation of tissue (including organs) after death is regulated by the Human Tissue Act 1983 (the Act) The Act provides a process for the authorised the removal of tissue (including organs) from a deceased person for the purpose of transplantation and for use for other therapeutic, medical or scientific purposes.

Registration is voluntary and particular tissue/organs can be nominated for donation You can also register your wish not to be an organ or tissue donor on the Donor Register.  As distinct from a wish to donate, the wish not to donate cannot be over-ridden after your death.

Organ and Tissue donation is a gift to recipients and their families as waitlists exist in every area of need. Prior to the ‘harvest’ of organs the relevant authority (hospital, university) must confirm that:

1. the deceased had not changed their mind since they recorded their intention to donate their organs; and

2. the donation has the consent of a representative of the deceased.  

An Executor named in a person’s Will has the right and responsibility to deal with a person’s body and funeral arrangements. If a person dies without a Will (intestate) the person who has the highest ranking as next of kin, under the law governing intestacy, will be responsible. (The rights of a surviving spouse or de facto will generally be preferred over the rights of any children.)

In summary, if an Executor or senior next of kin  states that the deceased had recently changed their mind about donating his or her organs or if this person refuses consent to the deceased’s organs being donated, no donation will occur. Studies have shown that 9 in 10 families say yes to donation when their family member was a registered donor and has discussed their intentions with them (Healthdirect.gov.au).

Therefore, as difficult as these conversations are, having them during your lifetime may alleviate the distress or resistance of a grieving family and ensure that your decision to either donate of not to donate is followed.

For more information you can go to https://transplant.org.au/faq/ and if we can be of assistance please contact our Wills and Estates Team on 9870 9870 or via our website.