National Assembly Deputy Pham Trong Nhan: Minors Must Have the Right to Refuse Tissue Donation Even if Parents Consent

Discussing the draft revised Law on Donation, Removal, and Transplantation of Human Tissues and Organs and Donation of Cadavers at the National Assembly on the morning of November 2, National Assembly Deputy Pham Trong Nhan, a member of the Ho Chi Minh City Development Research Board, stated that while the draft incorporates extensive feedback, it still lacks an adequate mechanism to protect the decision-making autonomy of individuals under 18 when donating regenerative tissue.

The revised draft dated November 1 stipulates that individuals under 18 may only donate living regenerative tissue to biological siblings when no eligible adult donor is available, and must obtain written consent from both biological parents, or from the surviving parent if one has passed away.

However, Deputy Nhan pointed out that while the early-October draft required consent from both the donor and their legal representative, the November revised version only mandates written consent from parents. The child’s will is considered through counseling and evaluation, but the draft lacks a specific provision establishing the legal validity of a minor’s refusal.

Deputy Nhan cited Clause 5, Article 23 of the draft, which grants individuals aged 18 and older who donate organs while living the right to refuse at any time. According to the Deputy, the law must grant the same right to minors donating regenerative tissue. “Children must be consulted separately, and if they refuse, tissue procurement must not proceed, even if their parents have given written consent,” he emphasized.

Sharing this stance, National Assembly Deputy Trinh Thi Tu Anh, a full-time deputy from the Lam Dong Provincial Delegation, argued that parental consent cannot replace the will of the child. Citing World Health Organization guidelines, she proposed that the law explicitly prohibit tissue procurement if a person under 18 objects, even if parents have granted written consent. Children must receive age-appropriate explanations and counseling so they can freely voice their wishes.

Deputy Tu Anh also proposed not procuring tissues or organs from individuals under 18 following brain death or circulatory death if there is evidence showing that the child objected to donation during their lifetime. According to the Deputy, the fact that minors lack the legal authority to register for organ donation does not mean their prior objections should be disregarded.

National Assembly Deputy Le Van Kham, a full-time member of the Committee on Culture and Social Affairs, called for legally recording both the consent and objection of the child. In his view, the right to refuse must be respected in every form; the moment a healthcare facility detects that a child does not consent or refuses to cooperate, tissue procurement must cease immediately.

National Assembly Deputy Pham Trong Nhan on the floor of the National Assembly. Photo: National Assembly Web Portal

Proposing Three ‘Firewalls’ to Protect Minors

To prevent conflicts of interest and the coercion of minors into donating tissue, Deputy Pham Trong Nhan proposed three safeguard measures.

First, individuals under 18 should only be permitted to donate regenerative tissue to biological siblings, without extending the scope to other familial relations.

Second, the condition regarding the absence of a compatible adult donor must be determined strictly by clinical criteria, ensuring that an adult relative’s refusal to donate cannot be treated as a justification to compel a child to donate in their place.

Third, tissue procurement authorization must be reviewed and decided by a court under civil matter proceedings within statutory time limits. If this judicial procedure cannot yet be implemented, an independent ethics committee should be established at the national or regional level, positioned entirely outside the hospital carrying out the procurement.

According to Deputy Nhan, parents simultaneously act as legal representatives for the child requested to donate and bear responsibility for the child in need of the transplant, creating an acute risk of conflicting interests. Meanwhile, the current draft assigns the authority to establish the advisory council directly to the tissue procurement facility itself.

“If these three firewalls are not incorporated, I respectfully request the National Assembly not to pass Point d, Clause 1, Article 12 until they are fully written into law,” Deputy Nhan petitioned.

The Deputy also proposed protecting the documented wishes of individuals under 18 regarding tissue and organ procurement following brain death or circulatory death.

Under the current draft, post-mortem procurement requires only written consent from legal representatives based on statutory priority, starting with biological parents. If both parents are living, written consent from both is required, alongside full respect for any objections expressed by the child while alive.

Deputy Nhan further recommended that family counselors must not belong to the treating clinical team or the transplant surgical team. Additionally, procurement priority schemes benefiting waitlisted patients at the medical facility that identifies, advocates for, and maintains the donor pool must not apply when the donor is a child. “Familial love cannot replace an independent legal mechanism,” Deputy Nhan affirmed.