Report No. 196

(12) Re Y (Mental capacity: bone marrow Transplant) (1997 (2) WLR 556) (14.6.1996) (Connel J)

A 25 years old plaintiff and her elder sister (the defendant) came from a very close supportive family. The plaintiff suffered a bone marrow disorder. Since 1984, the plaintiff had undergone extensive chemotherapy (i.e. for 12 years). There had been recent deterioration in plaintiff's condition and there was a strong likelihood that her situation would progress to acute myeloid leukemia in next three months.

The only feasible prospect was a bone marrow transplant from her sister (defendant). The defendant was severely mentally and physically handicapped and was incapable of giving consent to bone marrow transplant. Plaintiff sought a declaration that two preliminary blood tests and a conventional bone marrow harvesting operation under general anaesthetic could lawfully be taken from the defendant, despite the fact that defendant could not give her consent.

The learned judge allowed the application stating:

(1) The test in such case was whether it was in the best interests of the defendant for the procedure to take place. The fact that the process would benefit the plaintiff was not relevant, unless, as a result of the defendant helping the plaintiff, the best interests of the defendant were served. 92

(2) Without any transplant, the plaintiff's prospects for survival were poor and her condition was deteriorating fast. If the plaintiff died, this would have adverse effect on the mother of the parties with whom the defendant had a closer relationship than with any other relative. In particular, the mother's ability to visit the defendant would be handicapped significantly. The defendant would be harmed by the reduction in or loss of contact to her mother.

(3) It was to the "emotional, psychological and social benefit" of the defendant to act as donor to her sister because, in this way, her positive relationship with her mother was most likely to be prolonged. The disadvantages to the defendant of the harvesting procedure were very small. The bone marrow donated by the defendant would cause her no loss and she would suffer no real long-term risk.

Apart from referring to Airedale and other judgments of UK Courts, Connel J referred to an American case in Curran v. Bosze: (1990) 566 NE 2d 1319, where an application designed to permit bone marrow harvesting from twins for the benefit of their brother was considered. The Supreme Court of Illinois concluded that the doctrine of 'substituted judgment' (rejected in Airedale) was inapplicable but that the best interest test applied. Calvo J stated in that case that the benefit the donor will get and mostly it is in enhancing some close ties between donor or donee or their mother. He said:

"In each of the foregoing cases where consent to the kidney transplant was authorized, regardless whether the authority to consent was to be exercised by the court, a parent or a guardian, the key inquiry was the presence or absence of a benefit to the potential donor. Notwithstanding the language used by the courts in reaching their determination that a transplant may or may not occur, the standard by which the determination was made was, whether the transplant would be in the best interests of the child or incompetent person.

The primary benefit to the donor in these case arises from the relationship existing between the donor and the recipient. In Strunk, the donor lived in a State institution. The recipient was a brother who served as the donor's only connection with the outside world. In both Hart and Little, there was evidence that the sibling relationship between the donor and the recipient was close.

Connel, J. then quoted the further observations of Calvo J in Curram v. Bosze to the following effect:

"there must be an existing, close relationship between the donor and recipient. The evidence clearly shows that there is no physical benefit to a donor child. If there is any benefit to a child who donates bone-marrow to a sibling, it will be a psychological benefit. According to the evidence, the psychological benefit is not simply one of personal, individual altruism in an abstract theoretical sense, although that may be a factor.

A psychological benefit is grounded firmly in the fact that the donor and recipient are known to each other as family. Only where there is an existing relationship between a healthy child and his or her ill-sister or brother, may a psychological benefit to the child from donating bone marrow to a sibling realistically be found to exist. The evidence establishes that it is the existing sibling relationship, as well as the potential for a continuing sibling relationship, which forms the context in which it may be determined that it will be in the best interests of the child to undergo bone marrow harvesting procedure for a sibling'.