One topic that often arises when discussing estate planning with clients is organ donation.  I find that many clients have strong opinions about this subject – either they are strongly in favour or strongly opposed, the latter sometimes for religious reasons.  Whatever your personal opinion, it is undeniable that organ donation saves lives. 

So, how does it work in Ontario?

Ontario is an “opt-in” jurisdiction, meaning that those wishing to donate their bodily organs or tissue must expressly consent.  The easiest way to do this is to register online (www.beadonor.ca) or at Service Ontario, for example when renewing one’s health card or driver’s licence.

In January 2021, Nova Scotia became the first jurisdiction in Canada to become “opt-out” with respect to organ and tissue donation.  “Opt-out” is sometimes also referred to as “deemed consent” or “presumed consent.”  What it means, simply, is that an adult is deemed to have consented to donating his or her organs and tissue (if the situation arises) unless he or she has expressly withdrawn his or her consent.

“Opt-out” jurisdictions tend to have higher rates of organ donation than “opt-in” jurisdictions.  Why?  Because most people tend to favour organ donation, but don’t know that they need to actively take steps in order to register their support.  If the “stumbling block” of registration is removed and these people are automatically added to the potential pool of donors, thereby increasing the size of the pool, then rates of donation rise accordingly.  It must be emphasized that “opt-out” jurisdictions still honour and respect individual freedoms, but it does put the onus on those objecting for religious or other reasons to register their opposition.

Might Ontario follow Nova Scotia to becoming an “opt-out” jurisdiction?  Perhaps, but as of today’s date Ontarians still need to actively “opt-in.”

It’s good for people to consider including any specific wishes they might have regarding organ, tissue and other donation in a “Letter of Wishes” to their family members, in their Powers of Attorney for Personal Care, and in their Wills (or ideally in all three).  For example, would you like your body donated to a medical school after you die?  Are you OK with certain bodily parts being donated (e.g. heart and lungs), but others not being donated (e.g. skin and eyes)? 

Can your family members overrule your express consent to organ donation?  Even www.beadonor.ca’s own “FAQs” notes that:  “It is Trillium Gift of Life Network’s practice to reaffirm an individual’s consent to donate with the family.  In most cases [emphasis added], families honour their loved ones’ decision to donate if they have evidence that it’s what they wanted…Register as an organ donor and talk to your family about your wishes…”. 

Your family members may not have valid grounds for opposing your wishes, but the reality is that a hospital might be “scared off” from accepting your organs and/or tissue, even if you’ve registered, if your family members threaten to commence litigation should the hospital proceed.  As such, their suggestion remains a good one – if your loved ones (e.g. your spouse, parents, children, siblings, etc.) know your wishes, then they will be much more likely to agree with them if and when the situation arises.  So start the conversation today!