Avery's Law makes organ, tissue donation automatic in New Brunswick — with some exceptions

New Brunswick has become the second jurisdiction in Canada to adopt a presumed consent model for organ and tissue donation.

Under amendments to the Human Tissue Gift Act passed last week, most New Brunswickers 19 and older will automatically be presumed to agree to donate their organs and tissues when they die — unless they opt out, also known as deemed consent.

People with an intellectual disability will be exempt, along with anyone who has lived in the province for less than a year.

It's expected to take at least two years before the new system can be implemented, the Department of Health has said.

Under the current system, New Brunswickers who want to donate their organs and tissues have to check the appropriate box when they apply for or renew their Medicare card.

'Very good news'

The new law is "very good news for New Brunswick," according to Dr. Rémi LeBlanc, head of intensive care at the Dr. Georges L. Dumont University Hospital Centre in Moncton, and an organ donation physician.

He believes it will increase the number of organs available for transplants and significantly decrease the number of people who die waiting.

"The more potential donors we have, the more lives we save," said LeBlanc. "It will make a big difference."

There are 65 New Brunswickers currently on the wait-list for transplants.

Across Canada, out of the 4,400 people waiting for an organ donation, 250 people die each year.

"What the new law will change on a daily basis is that everyone will be considered a potential donor in the event of a neurological tragedy leading to brain death and a declaration of physical death, according to very rigorous criteria," LeBlanc said in French.

"It can also affect a neurological trauma without brain death, but with a patient in a vegetative state. We can then have the agreement of the family if the death occurs within a reasonable time."

Ninety per cent of citizens are in favour of organ donation, but only 25 to 30 per cent have signed their donor card, said LeBlanc.

An organ donor can save up to eight lives and their tissue can improve the lives of another 75 people, he said.

Opposition bill sees unanimous support

The bill, introduced by the Liberals in May, received unanimous support during third reading last Thursday, amid the political upheaval surrounding a review of Policy 713.

Bill 52, the Human Organ and Tissue Donation Act, is now known as Avery's Law.

Michelle Conroy, the Tory MLA for Miramichi, suggested the name change in honour of  Avery Astle, 16, who died after a crash in Miramichi in April 2019, along with three other teens.

Avery's parents wanted to donate his organs and tissues, including his eyes, but were told no one from the donation team run by Horizon Health was available to retrieve his organs.

"We've come a long way to see this bill finally come to where it stands today so I'm very excited to see this, especially after the last couple of weeks we've have in this house," said Conroy.

"I certainly think that everybody can agree that it's nice to come together on something for a change. It's been a long couple of weeks."

Nova Scotia is the only other jurisdiction in Canada that has adopted a presumed consent organ donation model. The law change was passed in April 2019, and took effect in January 2021, once supports were put in place to handle the anticipated increase in donations.

Health Minister Bruce Fitch has said he expects a "significant investment" will be required to implement the new model in New Brunswick.

Among the changes needed is a new registry, where New Brunswickers can register their decision to consent to donate all or some organs and tissues, known as express consent, or opt out of donating.

Adults who choose not to register a decision and are not exempt will be considered potential donors.

Making the decision

The legislation sets out that death must be determined by at least two physicians who "have skill and knowledge in conducting the specific medical tests established by the medical profession for determining death."

A physician who has had an association with a proposed organ recipient that might influence the physician's judgment may not take part in the determination of the death of an organ donor.

The chief coroner may allow the removal of organs or tissue of a person "notwithstanding that death has not yet occurred if … in the opinion of a physician the death of the person is imminent by reason of injury or disease."

When a person dies in a hospital or in circumstances where the coroner would be notified, or is close to death in the opinion of a physician, the hospital or chief coroner must, as soon as possible, provide to the organ-donation program and tissue bank with information, such as the person's age; the cause, or expected cause, of death; the time of death, if death has occurred; and any other available relevant medical and social history.

The law prohibits dealing in body parts. No person shall buy, sell or otherwise deal in, directly or indirectly, for valuable consideration, any human organ, tissue or body for use in transplantation, education or scientific research, it says.