McGILL LAW JOURNAL
Volume 19
Montreal
1973
Number 2
Experimentation on Humans and Gifts of Tissue:
Articles 20-23 of the Civil Code
W. F. Bowker *
INTRODUCTION
Experimentation on humans has taken place for centuries. In the
last fifty years, however, and particularly since World War II, it has
expanded so that today it is almost a special discipline. It was a
necessary prelude to the introduction into general use of many val-
uable drugs and medical procedures that we now take for granted.
A gift by a living person of a part of his body is likewise far from
new, but again new developments have made these gifts an important
part of today’s medicine. One need only mention blood transfusions
and kidney transplants.
So it is with the use of organs and tissues from cadavers. The
grafting of corneas of eyes taken from cadavers onto the eyes of
living persons to restore sight has been followed by the transplanta-
tion of hearts and doubtless other parts of the body will be success-
fully used before long.
These three developments raise legal as well as ethical questions.
Thus it is that the new articles 20-23 of the Civil Code are of general
interest, for they deal with all three –
experiments, inter vivos
transplants and transplants from cadavers. The purpose of this
article is to examine them in turn and to make some comparisons
with legal developments in common law jurisdictions.
* B.A., LL.B. (Alta.), LL.M. (Minn.), LL.D. (Alta.), Q.C., Professor of Law,
U. of Alberta, Director, Institute of Legal Research and Reform.
McGILL LAW JOURNAL
[Vol. 19, No. 2
Genesis of Articles 20-23
The new articles have been enacted as part of a general revision
of the Civil Code that has been under way for several years –
the
first comprehensive review since 1866.1 To assist in the revision a
Code Revision Office was established and given the responsibility for
making recommendations to the Legislature. One of the Office’s
several committees is on Civil Rights and Duties. The Chairman of
the Committee is Professor Paul-Andr6 Cr6peau, who is also Chair-
man of the Revision Office. The other Committee members are Mr
Justice Albert Mayrand and Mr Normand Lepine. In July, 1971 the
Committee prepared a report entitled “Report on the Recognition
of Certain Rights Concerning the Human Body”. This report recom-
mended five articles to provide for:
(1)
the right of a living adult to make a gift but not a sale, of
part of his body or to submit himself to experiments;
(2) his right to give instructions about his funeral and the dis-
(3)
(4)
posal of his remains;
the right of his family to give these instructions where he
has not given them;
the right of a physician in urgent cases to remove part of a
cadaver to save human life; and
(5) prohibition of autopsies unless authorized by law or with
consent.
These recommendations were circulated for comment, and in
October, 1971 the Revision Office submitted to the Legislature its
own report. It followed the Committee’s report with one important
change. The first proposal, which dealt with experiments and inter
vivos gifts, was extended to a minor who is “endowed with discern-
ment”, provided his parents consent and there is no serious risk to
the minor.
A Bill to embody the proposed articles was promptly introduced
and on 1 December, 1971 was passed. The recommended provisions
became articles 20 to 23, replacing articles that had dealt with Bri-
tish subjects, aliens and naturalized persons.2 The new articles con-
‘Crpeau, Centenaire du Code Civil du Quebec, (1966) 44 Can. Bar Rev. 389;
Baudouin, Le Code Civil Qu~becois: Crise de Croissance ou Crise de
Vieillesse, (1966) 44 Can. Bar Rev. 391.
2 S.Q. 1971, c.84. This statute includes also new articles 18 and 19, which
the Code Revision Office recommended along with articles 20-23. Article 18
confers legal personality on every person and article 19 says:
The human person is inviolable. No one may cause harm to the person of
another without his consent or without being authorized by law to do so.
1973]
ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
tain some changes both in content and form from the recommenda-
tions of the Code Revision Office. I shall note them at the appropriate
place.
Experiments and ‘Inter Vivos’ Gifts
The recommendation dealing with human experiments and inter
vivos gifts of human tissue became article 20. As enacted it contains
one provision that goes contrary to the recommendation of both the
Committee and the Revision Office: article 20 permits the sale, as
well as the gift, of a part of the body that is “susceptible of regen-
eration”.
Article 20 provides:
A person of full age may consent in writing to disposal inter vivos of a
part of his body or submit to an experiment provided that the risk assumed
is not disproportionate to the benefit anticipated.
A minor, capable of discernment, may do likewise with the consent of
the person having the paternal authority and of a judge of the Superior
Court, provided that no serious risk to his health results therefrom.
The alienation must be gratuitous unless its object is a part of the body
susceptible of regeneration.
The consent must be in writing; it may be revoked in the same way.
In considering this article, it will be convenient first to deal
with experimentation and then with inter vivos gifts.
HUMAN EXPERIMENTATION 3
So far as the writer knows there is no statute in any common law
province, or in Britain, or for that matter in the United States (apart
30f the huge volume of literature since World War II the following texts
are both recent and most helpful:
Katz, Experimentation with Human Beings (1971).
Freund (ed.), Experimentation with Human Subjects (1970), being a revision
of Daedalus, Spring, 1969, “Ethical Aspects of Experimentation with Human
Subjects”.
Annals of the New York Academy of Sciences, “New Dimensions in Legal
and Ethical Concepts for Human Research” (1970).
Beecher, Research and the Individual: Human Studies (1970).
Pappworth, Human Guinea Pigs (1967).
The foregoing are all American except Pappworth, which is English. I know
of no Canadian text.
Two articles are:
Waddams, Medical Experiments on Human Subjects, (1967) 25 U. of T.
Faculty Law Rev. 25.
Bowker, Legal Liability to Volunteers in Testing New Drugs, (1963) 88
C.MAJ. 745.
McGILL LAW JOURNAL
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from the Food, Drug and Cosmetic Act 4) that deals with experi-
mentation on humans.
Meaning of Experiment
What does “experiment” mean? It is necessary here to distin-
guish between experimental therapy on the one hand and scientific
experiment (or research study or clinical study or clinical research)
on the other. Experimental therapy is a new procedure in the pre-
vention, diagnosis or treatment of disease. It may of course provide
important information as well and thus have an aspect of research.
However, its immediate purpose is the good of the patient.
Scientific experiment on humans can be defined as something
done to the person with the principal purpose of finding out what
will happen to the person. Its primary object is the acquisition of
new knowledge rather than therapy, and the fact that ultimately it
may prove to be beneficial to others or even to the subject does not
render it therapy. There may be a sham operation to help determine
whether the real operation is of benefit. 5 Moreover, experiments are
sometimes performed on healthy persons, and so could not possibly
be called therapeutic. Illnesses have been induced, including malaria,
typhoid fever and hepatitis. Other procedures have been carried out
on healthy persons –
for example, the insertion of a cardiac catheter.
The testing of new drugs furnishes another good example of the
distinction between the two types of experiment. At one time the
drug maker asked practicing physicians to try out the new drug on
their patients. Remembering that a new drug is one that has not yet
been shown to be safe and effective, this practice is neither good
therapy nor good scientific experiment. It is generally agreed today
that scientific testing of new drugs should take place before they are
put on the market for therapeutic use. It is further agreed that some
patients should receive the new drug and others should be used as
“controls”. The controls may receive either an accepted drug, or a
“dummy” drug called a placebo, or no drug at all. This procedure
leads to a better assessment of the qualities and effect of the new
drug.
A common though not a universal method is to conduct “double-
blind” tests. For example, of one hundred patients, fifty may receive
the new drug and fifty may receive a placebo. To ensure accuracy
in observation of the results, neither the investigator who is conduc-
421 U.S.CA.
5 Beecher, Surgery as Placebo, (1961)
(1972), s.355(i), 471-72.
supra, 686-7.
.176 IA.M.A. 1102, quoted in Katz,
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ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
ting the test nor the patient knows whether the patient is receiving
the new drug or the placebo. After the drug has been administered
and observations taken, someone, preferably a neutral person, ascer-
tains who has received the new drug and who has received the
placebo. This procedure leads to a comparatively accurate assess-
ment of the new drug.6
It is sometimes said that a test making use of a placebo is thera-
peutic, even if double-blind. The writer has difficulty with this view.
It is true that placebos can sometimes have a good psychological
effect. However, in a double-blind test not even the physician admin-
istering the capsule knows whether it is the placebo or the unproven
drug. In these circumstances the procedure would seem to be re-
search rather than therapy. One might say that the borderline be-
tween the two appears to be hazy. Sometimes it is. However, the
distinction must be recognized, for it is of practical importance, as
we shall see.
When an American war crimes tribunal tried twenty Nazi physi-
cians and three others for crimes against humanity in connection
with “experiments” on prisoners in concentration camps, the tribunal
in its judgment at Nuremberg laid down ten legal rules that, in its
opinion, govern scientific experimentation. We shall have occasion
to refer to some of these Nuremberg rules later7
In 1964 the World Health Organization, after lengthy study,
published the Helsinki Declaration which prescribes ethical as
distinct from legal guidelines for human experimentation. This doc-
ument recognizes the distinction between the two types of experi-
ment. It sets out basic general principles and then in separate
sections discusses “clinical research combined with professional
care”, followed by “non-therapeutic clinical research”.8 The ethical
principles of the American Medical Association follow this pattern,
distinguishing between clinical investigation primarily for treatment
0There may be cases where administration of a drug to patients for the first
time and without the use of controls is unquestionably proper. The first
patients to whom insulin was given would have died and they were eager to
receive the drug: see Reminiscences on the Discovery of Insulin, (1962) 87
C.M.AJ. 1045. In the testing of Salk vaccine on hundreds of thousands of
children throughout the United States, a difference of opinion arose on
whether double-blind tests were necessary. In the result, some were double-
blind and in the others, the controls were children who received nothing: see
Carter, Breakthrough: The Saga of Jonas Salk (1966), ch. 10.
7 They are set out in Beecher, supra, 227 and in Waddams, supra, 52. For an
account of the trials, see Mitscherlich and Mielke, The Death Doctors (1962);
and Katz, supra, 293-306.
8 Beecher, supra, 277; Waddams, supra, 53.
McGILL LAW JOURNAL
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and clinical investigation primarily for the accumulation of scienti-
fic knowledge.9 The guidelines of the Faculty of Medicine at McGill
University do likewise.10
The purpose of the above discussion was to emphasize the dis-
tinction between the two types of experiment. It is relevant now to
look at experimental therapy and to ask what the liability of a physi-
cian to his patient is when the patient is harmed because the doctor
in the hope of benefiting the patient has used an experimental proce-
dure –
one that is new or at least not generally accepted. In the
common law there is no automatic liability; in other words there is
not a “no-experiment” rule. In the United States on the other hand
there was such a rule for a long time but it has been eroded. The
argument in favour of it is that it discourages reckless experimenta-
tion. The argument against it is that it deters progress. A middle
ground is to permit it in the sense of not rendering the physician
automatically liable if something goes wrong, but to require a high
degree of care and also disclosure to the patient of the fact that the
treatment is new and risky. The latter requirement is related to
the concept of “informed consent” which we shall consider later. In
my opinion this “middle ground” represents the common law posi-
tion.11
Turning to article 20, what is the meaning of “experiment” as
there used? It reads: “a person… may… submit to an experiment
provided that the risk assumed is not disproportionate to the benefit
anticipated”. The Committee report states that the draft article
contains a general principle “applicable to those kinds of operations
performed on a person’s living body which are outside of the normal
context of the doctor-patient relationship”. The Code Office Revision
Report repeats these words and adds that the article “envisages
essentially the cases where a person consents to submit to an incur-
sion upon his physical integrity without himself directly benefiting
from what may result”; and both reports say in slightly different
words that since such infringements are highly exceptional they may
only be permitted to take place if certain special conditions are met.
Thus “experiment” in article 20 would seem to refer to scientific or
non-therapeutic experiments.
The article permits a person to submit to experiments provided
that the “risk assumed is not disproportionate to the hoped for bene-
9 Beecher, supra, 222.
‘ONotes for the Guidance of Faculty Members doing Clinical Research, 10
Feb. 1967.
“See Bowker, supra, 74546; Katz, supra, 526-29.
1973]
ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
fit”. It seems clear that the appraisal of risk and benefit must be
determined at the time rather than subsequently. The language raises
the question of what is meant by “benefit”. Since in the writer’s opin-
ion, the article applies to scientific experimentation, it follows that
“benefit” means future benefit to persons other than the one submit-
ting to the experiment.
The problem of weighing benefit against risk is inherently diffi-
cult. The anticipated benefit may be great, or it may be slight; the
likelihood of achieving the benefit may be high, or it may be remote.
On the other hand the risk may be great or it may be slight.
The weighing of risk versus benefit is of course an understandable
approach to take, and it is found in various ethical codes. For exam-
ple, the Helsinki Declaration states that “clinical research cannot
legitimately be carried out unless the importance of the objective is
in proportion to the inherent risk to the subject”. Dr H. K. Beecher
in his own Code argues that:
… the gain anticipated from an experiment must be commensurate with
the risk involved. Sometimes large risks are to be taken for large gains,
but such risks should be taken in almost all cases only when the patient
promises to profit directly from the risk involved in needed therapy.12
In view of the difficulty in weighing risk against benefit, I
would suggest, with some diffidence, that it might have been prefer-
able had article 20 merely said “provided there is no serious risk to
his health”. In extending article 20 to minors capable of discernment,
the Legislature abandoned a risk-benefit criterion and simply
permitted the minor to consent “provided that no serious risk to
his health results therefrom”.
Informed Consent
Article 20 provides that a person may submit to an experiment.
It does not use the word “consent” as it does in connection with
inter vivos gifts of a part of the body. I infer, however, that the intent
is to require a consent of the same type that is necessary in connec-
tion with inter vivos gifts. This being so, the question then arises
of the amount of information that must be given to the volunteer
concerning the nature of the experiment and the attendant risks. It
is commonly said that there must be an informed consent, which I
take to be similar to “le consentement librement donnd” or “la
volontd librement exprimde”’13 or “le consentement dclaird”.14 This
12 Beecher, supra, 290.
13 Baudouin, La personne humaine au centre du droit qudbecois, (1966) 26
R. du B. 66, 67-68.
14Mazeaud, Les contrats sur le corps humain, (1956) 16 R. du B. 157, 167.
McGILL LAW JOURNAL
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concept probably has produced more discussion than any other topic
in connection with human experimentation, and indeed is much to
the fore in connection with therapeutic treatment. 5
When a physician advises his patient about a proposed treatment,
must he disclose the risks, so that if he fails so to do, the consent
will be ineffective and the patient can say that the physician acted
without consent? The physician or surgeon must explain the risks to
enable the patient to exercise an intelligent judgment on whether
to elect to proceed. In Canada the few cases dealing with this subject
allow the physician a wide scope in exercising his judgment, bearing
in mind the desirability of not upsetting the patient. The two leading
cases are from the Ontario Court of Appeal. In Kenny v. Lockwood “I
it was argued that the surgeon had not explained the risk of stiff-
ness resulting from an operation on the hand. A prominent surgeon,
Dr Gallie, testifying as an expert witness, said that if he outlined
every risk, including remote ones, some of which were rather fright-
ening, the patients would decline the operation and would damage
themselves by waiting to see what would happen without the opera-
tion. The court held that the defendants were not liable for failure to
disclose the risks. In the second case, Male v. Hopmans, 7 the patient
was treated with neomycin although it was known that this drug
could affect the hearing. The patient did in fact become deaf. One of
his allegations of negligence was that the defendant had failed to
disclose this risk. The alternative treatments were very complicated
and the court held that the defendant was under no duty to explain
them. It was said that the patient probably could not have grasped
the explanation or made an intelligent choice.
In an English case, Hatcher v. Black, 18 the operation was for a
toxic goitre. There was in fact a risk to the voice, and the surgeon
admitted that he had told the patient that there was no risk. In
summing up to the jury, Denning, L.J. (as he then was) directed the
jury that the little white lie was justifiable. This decision is not con-
sistent with the view of the New Zealand Court of Appeal in Smith
v. Auckland Hospital Board. 9 In that case the patient specifically
5 Katz, supra, devotes the whole of Part 3 to the authority of the subject
as guardian of his own fate, 523-724. This Part consists of three chapters of
material on informed consent.
16 [1932] 1 D.L.R. 507 (Ont. CA.).
1’ (1966), 54 D.L.R. (2d) 592, and on appeal (1967), 64 D.L.R. (2d) 105, 113.
The defendant was held liable on another ground.
I8 The Times, July 2 1954; quoted in Nathan, Medical Negligence (1957), 54.
19 [1965] N.Z.L.R. 191, rev’g [1964] N.Z.L.R. 241.
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ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
asked the surgeon whether there was any risk in a diagnostic proce-
dure called aortography. The surgeon replied that there was none.
In fact there was a known risk of loss of circulation which could
cause gangrene in a leg and require amputation. This risk materializ-
ed. The court found a breach of duty. The difficulty was whether the
untruthful answer caused the loss of the leg, for one can only
conjecture whether the patient would have rejected the procedure
had he been told the truth. The court held that there was evidence on
which the jury could find a causal connection between the answer
and the loss of the leg.
There has been a difference of opinion on whether, assuming an
absence of informed consent, the patient’s action is based on negli-
gence or assault. In the Smith case the claim was based on negligence.
It is submitted that this is the proper basis, though some courts take
the view that an uninformed consent is no consent, with the result
that the operation is an assault.0 In the United States the concept of
informed consent “has achieved a status in the law of medical prac-
tice unmatched both in speed of growth and bulk of commentary”.2 1
A leading case, Natanson v. Kline,22 is consistent with the cases just
discussed, though in the United States there may be a greater read-
iness to find that consent is not informed. At least some members
of the medical profession are concerned about the difficulty in
achieving informed consent. They feel obliged to show the patient
a document that tries to explain the procedure with clarity and the
risks with candor; the consequence may be that the patient is con-
fused or frightened or both.23
Whatever the duty to explain risks in connection with medical
treatment, there is no doubt that in scientific experimentation the
duty is very high; and if the disclosure is not made the consent is not
an informed consent and therefore is ineffective. The first rule of
the Nuremberg Code states that “the voluntary consent of the human
subject is absolutely essential”. It adds that he must have legal capa-
city to consent and the power of free choice to enable him to make
20Plante, An Analysis of “Informed Consent”, (1967-68) 36 Fordham L. Rev.
639.21Waltz and Scheuneman, Informed Consent to Therapy, (1969-70) 64 N.W.
L.Rev. 628.
22350 P. 2d 1093 (1960) (Kan. S.C.).
23 Cf. Oppenheim, Informed Consent to Medical Treatment, (1962) 11 Clev.-
Mar. L.R. 249, 261-4; and Irwin, “Now Mrs. Blare, About the Complications” in
Katz, supra, 393. On the other hand, cf. Glass, Restructuring Informed Con-
sent, (1970) 79 Yale L.. 533 says that the law on informed consent should be
reshaped to give more consideration to the patient’s viewpoint.
McGILL LAW JOURNAL
[‘Vol. 19, No. 2
an understanding and enlightened decision. The nature and purpose
of the experiment should be made known; and the means of conduct-
ing it, and “all inconveniences and hazards reasonably to be expected;
and the effects upon his health or person which may possibly come”.
The Helsinki Declaration provides that:
Clinical research [which, at least for practical purposes, can be taken as
synonymous with scientific experimentation] cannot be undertaken with-
out his free consent, after he has been fully informed.
The definition of “consent” in the Regulations under the United
States Food, Drug and Cosmetic Act, in connection with the testing
of new drugs, requires the most complete disclosure.2 4
There are two important cases in connection with informed con-
sent to scientific experimentation. The first is Halushka v. The Uni-
versity of Saskatchewan 25 and the other is the disciplinary proceed-
ing in the New York cancer-cell case.20 In Halushka, the investigators
advertised for volunteers to take part in a study of a new anaesthetic.
The fee was fifty dollars. Halushka was a university student who
volunteered. The procedure called for the insertion of a catheter in
an arm and on to the heart, and the giving of the general anaesthetic
that was being tested. While Halushka was under the anaesthetic,
he suffered a cardiac arrest. He was revived but the harm to his
health was considerable. He had signed a consent form in which he
said: “I understand fully what is proposed to be done.” At the
trial he testified that he had “skimmed through” the form and had
asked what “accidents” meant, and was told it meant such things as
falling down at home after the test.
It was agreed that the experiment had been well conducted.
Moreover it was assumed that the anaesthetic, not the catheter, had
caused the arrest. The doctors did not testify at the trial. The jury
found that the plaintiff had not consented to the performance of the
test that was made; that the doctors “committed a trespass” and
were negligent. Of three particulars of negligence one was “lack of
full explanation to the plaintiff of the test at the time of the so-
called ‘consent’ “. The defendants appealed, the main issue being the
validity of the consent. The Court of Appeal held that in research
24F.R. (1967) 8753 in Katz, supra, 573-4.
25 (1965), 53 D.L.R. (2d) 436 (Sask. CA.).
26The Jewish Chronic Disease Hospital Case, Disciplinary Proceedings,
reported in Katz, supra, ch. 1. Proceedings by a director of the hospital against
the hospital to compel disclosure of its records in connection with the experi-
ment are reported in Hyman v. Jewish Chronic Disease Hospital, 248 N.Y.S. 2d
245, on appeal 21 App. Div. 2d 495, 251 N.Y.S. 2d 818 (1964), final appeal N.Y. 2d
317, 206 N.E. 2d 338 (1965).
19731
ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
the duty of explanation is at least as great as, if not greater than,
that owed by a physician to his patient.
The example of risks being properly hidden from a patient when it is
important that he should not worry can have no application in the field
of research. The subject of medical experimentation is entitled to a full
and frank disclosure of all the facts, probabilities and opinions which a
reasonable man might be expected to consider before giving his consent.21
One of the investigators had told Halushka that a new drug was
to be tested but did not inform him that the new drug was an
anaesthetic of which he had no previous knowledge, nor that there
was risk involved in the use of the anaesthetic. Neither did he tell
him that the catheter would be advanced to and through his heart.
Halushka said he was given to understand that it would be merely
inserted in the vein in his arm.
While it may be correct to say that the advancement of the catheter to
the heart was not in itself dangerous and did not cause or contribute to
the cause of the cardiac arrest, it was a circumstance which, if known,
might very well have prompted the respondent to withhold his consent.28
It will be noted that in this case the basis of the judgment was that
of trespass, or assault, though the jury found negligence as well.
In the New York cancer-cell case,29 a physician distinguished in
cancer research was carrying out a proper and important investiga-
tion to determine how quickly the human body rejects implanted
cancer cells. The experiment had been carried out on a group of
healthy persons (inmates in a prison) who rejected the cells quickly,
and then on persons with advanced cancer who rejected them slowly.
It then was proper to try to determine whether the slower rejection
in the cancer patients was because of their cancer or merely because
they were seriously ill. A New York hospital for the chronically ill
agreed to provide patients for this purpose. Cells were implanted
in a number of patients. They were not told that this was being
done. There was no informed consent, and in some cases real consent
was impossible because of the patient’s state of health or the
language barrier. Disciplinary proceedings were brought, on charges
of fraud and unprofessional conduct. After extensive hearings the
New York Board of Regents upheld its committees’ findings that
the charges were established. One basis was failure to obtain proper
informed consent.
Few would deny that the investigator should be candid. In the
cancer-cell case he justified his nondisclosure by saying that he did
27 (1965) 53 D.L.R. (2d) 436, 444.
28 Ibid., 444-5.
29 Supra, fin. 26.
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not want to disturb the patients. This is understandable in therapy,
but the fact that patients would be disturbed is the very reason for
forbidding the experiment in the absence of consent obtained after
explanation.
There are difficulties in connection with the securing of informed
consent. Known risks can be explained, but as Dr Beecher has said:
“frequently the difficulty is that no one knows what the risks or
the benefits really will be”Y0 Then there is the question of communi-
cation. Some explanations are in technical language, and even where
they are simplified, it is hard to be sure that the volunteer under-
stands them.
Article 20 does not specifically require informed consent. How-
ever the Committee recognized that informed consent is essential:
… according to the general law of contract, the person of major age must
be sane, free and capable of understanding the consequences of his act.
The doctor or experimentalist has, moreover, the duty to inform him
adequately of the effects and dangers to which the gift or experiment
may give rise.
Consent by a Minor Endowed with Discernment
It will be recalled that the Committee had recommended that a
person submitting to an experiment must be an adult. At that time
the age of majority was still twenty-one, though the Committee
doubtless knew it would soon be reduced to eighteen.3 1 When the
Revision Office made its own report, it had received suggestions
that the age limit should be moved downward to include minors
“endowed with discernment” subject to two safeguards – parental
consent and absence of serious risk. This recommendation went
forward to the Legislature which adopted it with a further safe-
guard, namely, the consent of a judge of the Superior Court. What
is the age of discernment? In the common law provinces one speaks
of a child of tender years, and indeed Parliament has done so in
connection with the testimony of children.32 It may be that a child
beyond tender years is the same as a child endowed with discern-
ment. Neither term is precise.
It might help to look at the common law to see when it permits
a person to give his own consent to medical treatment. One recent
American work states that:
30 Beecher, supra, 20. See also Bowker, supra, 747 for a similar statement.
-3 S.Q. 1971, c.85, ss.3 and 4, amending articles 246 and 324 of the Civil Code.
32 Canada Evidence Act, R.S.C. 1970, c.E-10, s.16(1); cf. also the Juvenile
Delinquents Act, R.S.C. 1970, c.J-3, s.19.
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ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
The general rule is that parents or guardians must consent to treatment
on minors. … In some instances, however, a minor approaching majority
may give a valid consent if he fully appreciates the nature and the conse-
quences of his act. 3
In the writer’s opinion, the common law of England and Canada
permits a minor approaching majority to give his own consent.
Lord Nathan, writing in 1957 at a time when the age of majority in
England was still twenty-one, said:
It is submitted therefore that there is no rigid rule of law that an infant
is incapable of consenting or to the administration of medical treatment.34
and later:
It is suggested that the most satisfactory solution of the problem is to rule
that an infant who is capable of appreciating fully the nature and conse-
quences of a particular operation or a particular treatment can give an
effective consent thereto, and in such cases the consent of the guardian
is unnecessary…
In England the Family Law Reform Act, 1969, reduced the age of
majority to eighteen. However, it included a special section to provide
that a minor who has attained the age of sixteen years may give
effective consent to medical treatment. 3 5
In Canada most provinces have reduced the age of majority but
none has yet passed legislation dealing with the age of consent for
medical treatment. There is, however, a recent case in the Ontario
High Court holding that a twenty year old could give his own consent
to treatment for facial scars. This was at a time when Ontario’s age
of majority was still twenty-one. The court specifically accepted
Lord Nathan’s statement of the law. 6
If the common law has been in some doubt on the minimum age
of consent to medical treatment, it is still more uncertain in con-
nection with the right of a minor to consent to experimentation on
himself. An expression of opinion can be little more than a descrip-
tion of what one thinks the law should be. When the age of majority
was twenty-one, the writer expressed the opinion that a mature
minor might give a valid consent to submit to scientific experi-
ment 7 Now that it is eighteen in most provinces, the more mature
minor of the past is now an adult and the question could only arise
in connection with a person of seventeen years of age or younger.
I shall not attempt a prediction here. The problem arises again in
574-5.
33 Curran and Shapiro, Law, Medicine and Forensic Science 2d ed. (1970),
34 Nathan, supra, 174-176.
35 1969, 17 and 18 Eliz. II, cA6, s.8.
3O Johnston v. Wellesley Hospital (1971), 17 D.L.R. (3d) 139 (Ont. H.C.).
37 Bowker, supra, 748.
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connection with the capacity of a minor to donate an organ such as
a kidney, which will be discussed below.
Quebec’s provision is not clear on the lower limit of consent, just
as is the common law. However, Quebec has reduced the risk of abuse
by the safeguards that article 20 has placed around experimentation
on the minor of the age of discernment.
The Minor Below the Age of Discernment
Article 20 does not cover experiments on children below the age
of discernment. The inference is that they are forbidden. Does this
mean that Quebec law completely forbids scientific experiments on
children? Does the child have a cause of action if he has been the
subject of an experiment? Does he have to prove damage? The
writer cannot even guess the answers to these questions in Quebec
law. It is relevant however to look generally at the question of non-
therapeutic experiments on children. Sharp differences of opinion
exist on the propriety of using children for research, or at least of
exposing them to risk. A strict no-experiment rule would not be
realistic. As one British writer pointed out, there are experiments
such as a minor change in diet or clothing that could not possibly be
harmful
8
What of procedures that bear a risk of injury to the child? They
might either be forbidden or else might be permissible with the
informed consent of the parent or guardian. The legal position is
uncertain and ethical opinion is far from unanimous. I shall refer
first to a number of statements that say or imply that there should
be no experimentation on persons who cannot give their own con-
sent, and then to a number that treat it as permissible with the
consent of parent or guardian.
In the Nuremberg judgment, the first rule flatly says that “the
person involved should have legal capacity to give consent”. Further,
article 7 of the United Nations’ International Covenant on Civil and
Political Rights provides that:
No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without
his free consent to medical or scientific experimentation.
The first sentence of course has its origin in the English Bill of
Rights of 1688 and the Eighth Amendment to the United States
Constitution. Although it might seem strange to link experimenta-
tion with cruel and inhuman punishment, those who framed this
article doubtless had in mind the actions of the Nazi doctors. Thus
38 MAitchell, The Child and Experimental Medicine, (1964) 1 B.M.J. 721.
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ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
the article treats medical or scientific experimentation that is con-
ducted without the subject’s free consent as cruel, inhuman or
degrading treatment. 9
The British Medical Research Council in its 1963 statement on
Responsibility in Investigations on Human Subjects stated:
The situation in respect to minors and mentally subnormal or mentally
disordered persons is of particular difficulty. In the strict view of the
[English] law parents and guardians of minors cannot give consent on
their behalf to any procedures which are of no particular benefit’to them
and which may carry some risk of harm. Whilst English law does not fix
any arbitrary age in this context, it may safely be assumed that the
Courts will not regard a child of 12 years or under (or 14 years or under
for boys in Scotland) as having the capacity to consent to any procedure
which may involve him in an injury.40
An American writer has recently said:
I do not myself believe that there is such a thing as legitimate third-party
consent for children or other incompetents to enter without their wills
into research that is not even remotely in their behalf medically.41
In the same vein, Warren E. Burger, now Chief Justice of the
United States, has stated that “no adult has the legal power to con-
sent to experiments on an infant unless the treatment is for the
benefit of the infant”4 2
Contrariwise, the following statements approve of non-thera-
peutic experimentation on those who are incompetent to give their
own consent including children.
The Helsinki Declaration says: “if he is legally incompetent the
consent of the legal guardian should be procured”. This implies
that the consent will render the experiment ethically proper.
The 1966 guidelines of the American Medical Association provide
in paragraph 4(c) that:
Minors or mentally incompetent persons may be used as subjects [in
non-therapeutic situations primarily for the accumulation of scientific
knowledge] only if:
i. The nature of the investigation is such that mentally competent adults
would not be suitable subjects.
ii. Consent, in writing, is given by a legally authorized representative of
the subject under circumstances in which an informed and prudent
and the voting on article 7.
39Beecher, supra, 247 sets out amendments submitted, issues discussed
40Quoted in Beecher, supra, 265.
41 Ramsay, The Ethics of a Cottage Industry in an Age of Community and
Research Medicine, (1971) 284 N.EJ.M. 700, 705-6.
42 Burger, Reflections on Law and Experimental Medicine, (1968) 15 U.C.L.A.
L.Rev. 436, 438.
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adult would reasonably be expected to volunteer himself or his child
as a subject. 43
An American case that has relevance to this question is Bonner
v. Moran.”4 A fifteen-year old boy donated skin without obtaining
his mother’s consent. His action against the physician failed at trial
but the Federal Court of Appeals directed a new trial because the
judge had declined to direct the jury that the mother’s consent was
necessary. The court held that it was and that a minor could not give
an effective consent to this type of procedure. The court was not
prepared to make an exception for any minor, for the operation was
not for his benefit. The significant point in the judgment, however,
is the inference by the court that the mother’s consent would prevent
any recovery by her son. This is the point of principle on which I
disagree.
This does not mean that experimentation on children is always
unethical. As Dr Beecher states:
Parents still have the right to decide whether their children will partici-
pate in experimentation, even if not for their direct benefit, provided the
studies contemplated have no discernable risk and have been approved
by a high level review committee as necessary and valuable for human
progress and do not unfairly take advantage of the child.
and
Research that entails discernable risk may not be performed on subjects
too young to give mature and informed consent, unless for their direct
benefit.45
In spite of the fact that the researcher scrupulously follows these
guidelines, the child may still be injured in the course of the experi-
ment. The position I have taken permits him to bring an action
against the researcher. In other words the parents’ consent and any
release they give are not binding on the child. Some may object that
a procedure that is ethical should never expose the researcher to
legal liability, at least in the absence of negligence, and that my
proposal will discourage needed research. It is suggested, however,
that this position avoids the extreme of a rigid “no experiment on
children” rule, and the opposite extreme of permitting a parent to
bar his child from claiming damages for harm from a non-thera-
peutic intervention. If guidelines like Dr Beecher’s are followed the
risk of harm is slight; but if it materializes the loss should not fall
on the child.
43 Quoted in Beecher, supra, 223.
44 126 F. 2d 121 (1941). The opinion of the solicitors to the Peter Bent
Brigham Hospital in connection with a proposed kidney transplant from one
minor twin to the other was that the dictum in Bonner v. Moran probably
would not be followed in Massachusetts: see Katz, supra, 964-966.
45 Beecher, supra, 67-68.
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ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
The problems just discussed in relation to children are similar
to those which arise in connection with the mentally incompetent.
Article 20 by inference excludes experimentation on adults who can-
not give their own consent. On this issue the common law is no more
settled than it is in the case of children. The need to conduct
research and yet to show respect for the individual are just as great
as in the case of children 6
Experimentation with “Captive Subjects”47
The last point to be mentioned about consent to experimentation
relates to the use of persons who are adults of sound mind but who
may nevertheless be thought to be under some form of constraint
so that their consent is not truly voluntary. In the United States
prisoners in jails are frequently used in experiments. 8 They may be
subject to affirmative pressure that is explicit or, more likely, im-
plicit. Some pressure is perhaps inherent in the status of the pris-
oner, no matter how much the researcher tries to secure a truly
voluntary consent. The question is whether the risk of coercion can
only be prevented by excluding the use of prisoners completely. A
recent statement commends itself to the writer:
I am one who happens to believe that prisoners have not been and
should not be drummed out of the human race. They ought, therefore, not
to be excluded in principle from the community of risk-filled human
consent to good purposes, even if the needed practical protections for
them are so formidable as to prohibit the general use of prisoners in
medical research.49
Other groups of whom advantage may be taken are students,
employees, and those in the armed services. I do not think one can
say that they should all be automatically excluded, but it is clear
that special care must be taken to avoid coercion. The reports that
produced article 20 do not refer to this problem.
40See Katz, supra, ch. 12, “Experimentation with Uncomprehending Sub-
jects”.
47 See Katz, supra, ch. 13. I have borrowed his title.
48For a robust criticism of experiments on prisoners in United States’ jails,
see Mitford, “Experiments Behind Bars”, The Atlantic Monthly, January 1973,
64. For an account of the concern of the Department of Health Education and
Welfare, see Marston, Research on Minors, Prisoners and the Mentally Ill,
(1973) 288 N.E.I.M. 158.
49 Ramsay, supra, 705.
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INTER VIVOS GIFTS OF TISSUE ‘0
Article 20 petmits a person of full age to make a gift of part of
his body. As we have seen, the implication is that he must be of
sound mind. There is no provision for consent by a guardian of a
mental incompetent. A minor endowed with discernment may like-
wise make such a gift subject to the consent of his guardian and of
the Superior Court, and provided that there is no serious risk.
Article 20 does not permit a person to be a donor if he is below
the age of discernment. What does the common law permit? The
answer is not clear. However, there have been cases in the United
States of donations of a kidney by a minor or a mental incompetent.
These cases show how the law is developing in that country.
The first kidney transplants were performed in a Boston hospital
in 1954. The parties were adult identical twins. Two years later
the same hospital had three more cases of identical twins. However,
one set was nineteen years of age and the other two were fourteen.
There was no special problem concerning the recipients, for the
parents had power to consent to the operation as in the case of any
medical treatment for a child. A serious question arose, however,
about whether the hospital could rely on the parents’ consent on
behalf of the donor. The hospital’s solicitors gave an opinion that
the parent “has no power to give effective consent to an operation
which is both hazardous and personally detrimental to this child”. 1
In each case the parents then brought a petition in the Supreme
Judicial Court of Massachusetts. The three petitions were heard by
three different judges. In each case the court held that it had
jurisdiction and gave an order approving the transplant. In all these
cases the donor was intelligent and received a candid explanation
and gave consent. The psychiatric evidence was to the effect that
there would be a beneficial emotional result to the donor if he were
permitted to give the kidney to his brother. The court accepted this,
finding that if the operation were not performed and the sick twin
were to die, there was a danger “of serious emotional impact” upon
the healthy twin; that because the risk of emotional disturbance
would be reduced and the donor enabled to have the continued
companionship of his twin, the donor would benefit; and that the
50 Examples of recent literature include: Wolstenholme and O’Connor (ed.),
Ethics in Medical Progress (1966); Dworkin, The Law Relating to Organ
Transplantation in England, (1970) 33 M.L.R. 353, 354-64; Castel, Some Legal
Aspects of Organ Transplantation in Canada, (1968) 46 Can. Bar Rev. 345, 345-
78; Kusanovich, Medical Malpractice Liability and the Organ Transplant,
(1971) 5 U. of S.F. Law Rev. 223, 225-38.
51 The opinion is set out in Katz, supra, 964-966.
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ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
operation was necessary to the donor’s future welfare and hap-
piness.
5 2
It is relevant to note here the comments of Professor W.J. Curran:
(1) on the facts the court might have held that each donor was
capable of giving his own consent; (2) the “psychological benefit” to
the donor is rather “the prevention of possible detriment than it is
the conferring of a positive gain”. 3
In a 1969 case from Kentucky, Strunk v. Strunk,5 the sick
brother, Tom, was twenty-eight years old. The healthy brother,
Jerry, was twenty-seven and an inmate of a state institution for the
feeble-minded with the I.Q. of a six-year old. He was the only member
of the family who was medically acceptable as a donor. The mother
applied to the court for authority to proceed. The court gave the
order “because Jerry was greatly dependent upon Tommy, emotion-
ally and psychologically, and … his well-being would be jeopardiz-
ed more severely by the loss of his brother than by the removal of
his kidney” 5 An appeal was taken on behalf of Jerry to the circuit
court which upheld the original judgment, and then a further
appeal was taken to the Court of Appeal. That court upheld the order
by a majority of four to three. The prevailing judgment relied on the
opinion of the State Department of Health that the sick brother’s
life was vital to Jerry’s well-being and that the Department “must
take all possible steps to prevent the occurrence of any ill feelings
Jerry would have if Tom were to die”;5″ and it held that a court of
equity has inherent jurisdiction to take action to protect the men-
tally incompetent.
The dissenting judgment of Steinfeld,J. points up the issue. The
first and last paragraphs of the dissent are as follows:
Apparently because of my indelible recollection of a government which, to
the everlasting shame of its citizens, embarked on a program of genocide
and experimentation with human bodies I have been more troubled in
reaching a decision in this case than in any other. My sympathies and
emotions are torn between a compassion to aid an ailing young man
and a duty to fully protect unfortunate members of society.
I am unwilling to hold that the gates should be open to permit the removal
of an organ from an incompetent for transplant, at least until such time
as it is conclusively demonstrated that it will be of significant benefit to
the incompetent. The evidence here does not rise to that pinnacle. To hold
52 See Katz, supra, 967-72 for an account of one of the cases.
53 Curran, A Problem of Consent: Kidney Transplantations in Minors,
(1959) 34 N.Y.U. Law Rev. 891, 897-8.
54445 S.W. 2d 145 (1969) (Ky. CA.).
55 Ibid., 146.
56 Ibid., 146-7.
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that committees, guardians or courts have such awesome power even in
the persuasive case before us, could establish legal precedents, the dire
result of which we cannot fathom. Regretfully I must say no.5 7
The latest case is Hart v. Brown,5 8 from Connecticut. Again there
is an important difference in the facts. The child who required the
transplant was just under eight years old and the prospective donor
was her identical twin. The parents requested the operation. With-
out the transplant the sick twin would probably not have survived,
and a transplant from the identical twin was more likely to succeed
than one from anyone else. A psychiatrist testified that a successful
operation would be of immense benefit to the donor “in that the
donor would be better off in a family that was happy than in a
family that was distressed and that it would be a very great loss
to the donor if the donee were to die from her illness.” The court
held this evidence to be of “limited value”, but did attach weight to
the opinion of a clergyman that the parents’ decision to consent was
morally sound. The court held that the parents were entitled to
substitute their consent for that of their minor children; and “to
prohibit the natural parents and the guardians ad litem of the minor
children the right to give their consent under those circumstances,
where there is supervision by this court and other persons in examin-
ing their judgment, would be unjust, inequitable and injudicious”. 9
The order was granted.
How would article 20 apply to the three cases we have just
described? In the case of the nineteen year old twins, they would
now be adults in Quebec and so the donor could decide for himself.
What about the fourteen year old twins? Are they capable of discern-
ment? In the Massachusetts judgment the court said of the donor:
“He is a boy of fourteen with good understanding and intelligence.
He has been fully informed of and understands the nature of the
operation and its possible risks and consequences.” This seems to
mean that the donor was capable of discernment. Of course the
judge in deciding whether to give consent would look carefully into
the donor’s capacity, as did the Massachusetts court. The difficulty in
fixing a minimum age is shown by the difference of opinion at a dis-
cussion of kidney transplants. The opinions range from complete
prohibition of donations by infants down to permitting them at the
age of twelve or thirteen.60
57 Ibid., 149, 151 per Steinfeld,l., Neikirk and Palmore,JJ., concurring, dis-
senting.
58289 A. 2d 386 (1972).
59 Ibidm, 391.
‘6Wolstenholme and O’Connor, supra, 203.
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ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
The question of risk of harm would also have to be considered.
It appears that in the case of a healthy donor this risk is not sub-
stantial. 1
Under article 20 the Strunk donation would not have been per-
mitted because the donor was mentally incompetent and could not
give a valid consent. The result would be the same in Hart v. Brown,
because the donor was under eight years of age and by no stretch of
the imagination could be said to be “capable of discernment”.
Should the law permit the transplant on the facts of Strunk and
of Hart v. Brown?
It is submitted that in general persons incapable of making up
their own mind should not be subject to harmful procedures that
have no therapeutic value for them. It seems somewhat specious to
find therapeutic value to the donor in the psychological prevention
of harm to him, as was done in the Boston cases. The situation that
is most troubling is that of the eight-year old identical twins. The
likelihood of saving one twin’s life is great and the physical risks
to the other twin are not very great. Besides the parents strongly
favour the transplant. Should the law permit the donation even on
these facts?
Notwithstanding the forceful judgment in Hart v. Brown, I think
not. The taking of the kidney from the healthy twin means that his
body has less inviolability than that of anyone else. I think that this
is what Lord Kilbrandon had in mind when he asked the question:.
“What is the ethical basis for a doctor respecting the prejudices of
parents if he is convinced that they are inimical to the welfare of
the child?”, and when he commented that identical twins are two
2
personalities.6
Inter Vivos Gifts under The Uniform Human Tissue Act
In the common law provinces there was until recently no legisla-
tion governing inter vivos gifts of human tissue. By 1970 a committee
of the Medico-Legal Society of Toronto had studied this subject and
prepared a draft Act. It came before the Conference of Commis-
sioners on Uniformity of Legislation in Canada the same year. That
body adopted it as Part One of a revised Human Tissue Act.6 3 (The
original Uniform Human Tissue Act of 1965 dealt only with gifts of
cadavers which I shall discuss below.) The Uniform Act was amend-
61 Ibid., 19-20, 209-10.
62Ibid., 39, 203.
63Proc. Conf. of Comm’rs on Uniformity of Leg’n in Can. (1970), 151.
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ed in 1971 and re-named the Human Tissue Gift Act,” but Part One
was unchanged.6 5 The essential provision is section 3(1):
Any person who has attained the age of majority, is mentally competent
to consent, and is able to make a free and informed decision may in a
writing signed by him consent to -the removal forthwith from his body of
the tissue specified in the consent and its implantation in the body of
another living person.
This has much in common with article 20. The donor must be of age,
though a later provision validates the consent of a minor where there
was no reason to believe that he was not an adult capable of consent.
The requirement of writing is present and it will be noted that the
phrase “free and informed decision” is used.
One feature of the Act is that tissue is defined to exclude “tissue
that is replaceable by natural processes of repair”. This seems
synonymous with “regenerative tissue” and the result is that Part
One is confined to non-regenerative tissue like kidneys. This reduces
the scope of Part One and raises the question whether gifts from
minors of skin, bone, or blood are by inference prohibited or whether
they are permitted and not circumscribed by the safeguards of Part
One. Probably it is the latter for section 10 in Part Three forbids the
sale of tissue or of any part of the body except blood. This implies
that parts of the body other than tissue may be given.
Three provinces have passed the Revised Uniform Act.”‘ It is
likely that most of the others will soon enact it.
The Sale of Blood
The Quebec Committee had taken the firm position that no part
of the body should be an article of commerce. “The human body
cannot be made a marketable commodity or the object of commer-
cial dealing.” And again: “Nor would it be desirable to treat human
blood, or any other renewable human tissue differently from other
parts of the body. It is not readily obvious why, for example, blood
should exceptionally be admitted as the object of a sale or a
business.” Then follows a quotation from Professor Savatier who
said that the human body should not be given for money but can be
given for love. The Code Revision Office supported this view. “The
64 The 1970 revised Uniform Act was recommended by the Ontario Com-
missioners, but when the Ontario Legislature enacted it in 1971 it made some
changes, including the title. The 1971 version of the Uniform Act is virtually
identical with the Ontario Act of 1971 (S.O. 1971, c.83).
65 Proc. Conf. of Comm’rs on Uniformity of Leg’n in Can. (1971), 152.
18 Human Tissue Gift Act, S.O. 1971, c.83; Human Tissue Act, S. Nfld 1971, no.
66; Human Tissue Gift Act, S.B.C. 1972, c.27.
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ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
gratuitousness of the act is essential. The human body cannot
become merchandise, an object of commercial transactions.”
However, the Legislature must have been persuaded that it is
proper to permit the sale of regenerative tissue, for article 20 pro-
vides that “the alienation must be gratuitous unless its object is a
part of the body susceptible of regeneration”. This means that sale
of skin or bone, as well as blood, is permitted. There is a similar
provision in the Revised Uniform Human Tissue Gift Act, 1971.61
Section 10 of that Act forbids the sale of any part of the body but
makes an exception for blood. This is somewhat narrower than
Quebec’s exception, for the latter includes all regenerative tissue.
Should the sale of regenerative tissue, or even of blood alone, be
permitted by law? Perhaps the issue can be stated with reference
to a book by Richard Titmuss. Under the cryptic title, The Gift Re-
lationship,8 this book states in a most persuasive way the case for
true donations as distinct from sale of blood. There are two main
arguments. The first is that the quality of blood or blood product is
better. People who come off the street to sell their blood are often
derelicts who conceal their medical history and in whom the inci-
dence of such conditions as hepatitis is higher than it is in donors
who contribute gratuitously through organizations like the Cana-
dian Red Cross. The second argument is a moral one, that it is
healthier for society if its members take an altruistic interest in
helping others. This is the gift relationship in the title of the book.
In the United States commercial blood banks are commonplace.
Mr Titmuss estimates that they account for almost half of the blood
taken from humans. In Canada the Canadian Red Cross Society
collected blood from volunteers in World War II for the use of. the
armed forces. Near the end of the war, hospital associations and
provincial Departments of Health asked the Society to continue the
service in peace time. Thus a national system, now called the Cana-
dian Red Cross Blood Transfusion Service, came into being. It
relies on donors, and the public has supported it. It is “as complete
as any in its development and scope. It is said to be unique among
similar services in the world”. 9 It is disappointing to a Canadian
that Mr Titmuss in his thorough examination of transfusion systems
throughout the world, makes no mention of Canada, for the writer’s
impression is that our system meets the ideal of Mr Titmuss as
closely as any in the world.
67 s.o. 1971, c.83.
68Titmuss, The Gift Relationship (1970).
69 The Gift of Life, undated, published by the Canadian Red Cross.
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The question remains, however, should blood ever be sold? In
Edmonton and northern Alberta in 1972 the Red Cross collected
45,408 units of blood, all donated. In addition, however, there is a
special program involving a small number of people, less than
twenty in number, who have unusual blood that is valuable in the
production of serum. It is only the plasma that is needed and the
procedure is called plasmapheresis. The donors spend about three
hours at a time to go through the process. These people receive an
honorarium. The burden on the donors is such that this compensa-
tion seems reasonable and a justifiable exception to the principle of
donations.
Another reason sometimes given for permitting the sale of blood
in Canada is the possibility of a major disaster that would create an
urgent and heavy demand that could only be met by the purchase
of blood.
The writer’s view is that it would be preferable, contrary to
article 20 and the Uniform Act, to forbid the sale of any human tissue
with an exception for the Red Cross program of plasmapheresis.Y
If an emergency occurs, the public can be counted on to respond.
GIFTS OF CADAVERS: AUTOPSIES 71
It will be noted that article 20 deals with two of our main topics,
experiments and inter vivos gifts, whereas article 21 provides for
gifts of cadavers, in whole or in part. Article 22 permits the taking of
parts of a cadaver with the consent of the spouse or next of kin,
and without that consent in urgent cases to save life. Article 23
provides for autopsies. We shall now examine articles 21-23.
Article 21 provides:
A person of full age may, in writing, determine the nature of his funeral
and the disposal of his remains.
A minor, capable of discernment, may do likewise with the consent of the
person having the paternal authority.
The consent must be in writing; it may be revoked in the same way.
In the absence of instructions by the deceased, usage is followed.
It combines the Committee’s recommendations two and three.
The former is unchanged but the latter, which had listed the persons
who in the absence of instructions by the deceased, could decide on
70 As one of the Alberta Commissioners on the Uniformity Conference, the
writer queried and then acquiesced to section 10 of the 1971 Uniform Act,
which permits the sale of blood. Perhaps it ill becomes him now to criticize
that section. The fact is that his misgivings have since increased.
71 See Castel, supra, 378-405; and Dworkin, supra, 364-76.
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ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
the funeral and the disposal of the remains, is replaced by the simple
provision that “usage is followed”.
The report of the Committee and that of the Revision Office say
that the first paragraph:
… states a recognized principle of the civil law. It gives to the person of
major age the right to specify in advance the ceremonies to take place
after his death, as well as that to decide the manner in which his body
will finally be disposed of (for example, by burial, cremation or otherwise).
This provision is also intended to cover the gift of the whole or of a part
of the cadaver for therapeutic or other legitimate purposes.
In other words this brief article confers on a person two impor-
tant powers: to make binding provisions for his funeral and to make
a gift of all or a part of his body after death. In a common law
jurisdiction I doubt that the brief first paragraph of article 21 would
be adequate to confer authority on a person to donate an organ for
therapeutic or scientific purposes. It is clear, however, that the Code
Revision Office is satisfied that it is sufficient in Quebec.
What is the common law on these matters? No one could own a
dead body and from this consequence grew the rule that a person
could not himself make a binding disposition of his cadaver after
death. The latter rule is a non sequitur. Even if a cadaver is incapable
of ownership it should not follow that a living person cannot make
binding directions on the disposal of his body after death. However,
the rule is firmly entrenched.
It is accompanied by another rule having to do with burial. In
Blackstone’s words, the executor had a duty “to bury the deceased
in the manner suitable to the estate which he leaves behind him”7 2
This duty became converted into a right vested in the executor or
the family. These rights are hard to define. For example, does the
family have a cause of action when an unauthorized autopsy has
been performed? An Alberta case, Edmonds v. Armstrong Funeral
Home,73 held that those responsible for the burial have certain rights
over the body. From this the court went on to find that the unauthor-
ized autopsy was an infringement of these rights. In truth the court
was seeking a theory on which to found an award of compensation
for the family’s injured feelings. Prior to the Alberta decision, a
Quebec case had reached the same result in an action by the widow74
The paradoxical result of the common law rules was that the
executor or members of the family of the deceased had the power of
disposal of his body: he himself did not. Another weakness of the
72 2 Bl. Comm. 507.
73 [1931] 1 D.L.R. 676.
74 Phillips v. Montreal General Hospital (1908), 33 C.S. 483.
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common law is that it was uncertain – or at least it seemed so to
the person who wanted to dispose of the body 7r, or possibly to
remove an organ. He might well be in doubt about who could give
him authority, and when in doubt the ordinary course is to refrain.
The English Anatomy Act 71 of 1832 was passed to put an end to
the “stealing” of bodies from graves to sell to physicians for ana-
tomical study. This Act enabled a person having lawful custody of
a body to permit an anatomical examination. It also enabled a
person in his own lifetime to direct a post mortem examination on
his body. However, this Act showed the same solicitude for the
feelings of the family that the common law had shown, for it
permitted the spouse or relative to require interment without such
examination. 77
It was only in recent years that the therapeutic use of any organ
from a cadaver became feasible. The first tissue that could be
successfully used was the cornea of the eye. It is a transparent hard
substance that covers the colored portion. When it is damaged sight
is affected or lost. Sight can be restored if the damaged cornea is
removed and replaced by a healthy one. A cornea from a cadaver
is satisfactory provided it is obtained promptly. The Anatomy Act
did not cover such a use of any part of the body. To deal with this
special situation, the British Parliament in 1952 passed the Corneal
Grafting Act.78 It permitted a person to request that his eyes be used
after his death to restore the sight of a living person. However, the
influence of the common law remained, for even with a request the
Act still left the decision to the surviving spouse or near relative,
who was given the power but not the obligation to authorize removal
of the eyes.
The Canadian National Institute for the Blind was of course
anxious to have legislation in Canada to permit gifts of corneas. In
1957 New Brunswick passed an Act 79 similar to the English one and
in 1959 the Conference of Commissioners on Uniformity of Legis-
lation in Canada adopted a Uniform Cornea Transplant Act on the
same lines.80 It was promptly adopted in most common law prov-
inces.
75 Hunter v. Hunter, [1930] 4 D.L.R. 255 (Ont. H.C.) held that in a dispute
between the executor (a son) and the widow on the place of burial, the exec-
utor’s wishes should prevail.
76 2 and 3 Will. IV, c.75, ss.7 and 8.
77 Ibid.
78 15 and 16 Geo. VI and 1 Eliz. II, c28.
79 Corneal Grafting Act, S.N.B. 6 Eliz. II, c.7.
80 Proc. Conf. of Comm’rs on Uniformity of Leg’n in Can. (1959), 77.
1973]
ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
By this time, it had become apparent that other parts of a cadaver
could be used to aid the living. For this reason Britain in 1961 re-
placed the original Act by a Human Tissue Act.”‘ It extends to all
human tissue for therapeutic, educational or scientific purposes.
However, it leaves the final decision to the person lawfully in charge
of the body. The common law solicitude for the feelings of the family
is maintained.
The Uniformity Conference made use of this Act in adopting a
Uniform Human Tissue Act in 1965.82 However, the Uniform Act took
away the need for authorization by the family of the deceased where
he himself had authorized the use of his body. In other words the
1965 Uniform Act puts the wishes of the deceased ahead of those of
his family and makes them prevail. This might wound the sensibili-
ties of members of the family, but the Conference thought they
should give way to the wishes of the deceased. After all, his purpose
is humanitarian –
to assist the living.
Another change from the English Act of 1961 has to do with
the case where the deceased has given no direction. The Uniform
Act lists in order of priority by relationship those persons who
may give consent, and puts at the bottom “the person lawfully in
possession of the body”.
Soon after our Uniform Human Tissue Act came into being,
and about the time when several provinces were adopting it, the
completion of the first heart transplants raised in acute form an
issue that did not arise in connection with corneas. In heart trans-
plants the urgency is so great that questions have arisen about
whether the prospective donor might be permitted to die sooner
than he otherwise would have, in order to make his heart available
to someone who is near death. This has led to a widespread dis-
cussion of the question when death occurs. This was one of the
reasons why suggestions were made to the Uniformity Conference
to make some revisions in the Human Tissue Act. (Another was
to provide for inter vivos gifts, already discussed.) As a result, a
revised Uniform Human Tissue Act was adopted by the Conference
in 1970.8
It underwent minor changes in 1971 including a change
in name to the Human Tissue Gift Act.8 For convenience I shall
refer to the 1971 version. It contains several provisions that were
included because of problems that arise in connection with heart
819 and 10 Eliz. II, c.54.
82 Proc. Conf. of Comm’rs on Uniformity of Leg’n in Can. (1965), 104.
83 Supra, f.n. 63.
84 Supra, f.n. 64.
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transplants. For example the consent of the spouse or other mem-
ber of the family does not have to await death. Section 5(1) pro-
vides that where the person “is incapable of giving a consent by
reason of injury or disease and his death is imminent” the spouse
or other designated person may consent. Again, there may be a
case where death is imminent and the physician in charge thinks
there will be a coroner’s inquest. In that event, section 6 permits
the coroner, notwithstanding that death has not yet occurred, to
give directions for the removal of tissue. The last provision of
interest is one dealing with time of death. The Conference was
not prepared to define it. Section 7(1) states that “the fact of
death shall be determined by at least two physicians in accordance
with accepted medical practice”. The remaining subsections of sec-
tion 7 provide in effect that the physicians who determine the fact
of death must be independent of the donor and donee except in
the case of cornea transplants.
Ontario, Newfoundland and British Columbia have passed the
revised Uniform Human Tissue Act either in its 1970 or 1971
form.
85
The American Uniform Anatomical Gift Act, 1968, which has
been adopted, sometimes with variations, in all States except
Massachusetts and Nebraska should now be mentioned.8 0 Its basic
principle is that of our 1965 Uniform Act; that is to say, it gives
priority to the wishes of the deceased over those of his family.
Where the deceased has given no directions, the persons who may
do so in order of priority are almost identical with those in our
1965 Uniform Act.
The American Act does however have some provisions of interest
that are absent both from article 21 and our Uniform Act. It spells
out the persons and institutions to whom the gift may be made,
and provides that a donee need not be specified. In addition it
deals with delivery of the document of gift, with the methods of
amending or revoking the gift, and acceptance or rejection of the
gift.
If legislation of this kind is to be effective, the public should
know about it. They should be assisted in making gifts and the
fact of the gift should be known immediately on the donor’s death.
The Canadian National Institute for the Blind has long provided
an “eye bank card” which the donor can carry on his person.
However the writer knows of no cards that are available in Canada
85 Supra, f.n. 85.
86 8 Uniform Laws Annotated, Master Edition (1972), 22.
1973]
ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
covering parts of the body other than eyes. The American Uni-
form Act provides in section 4(b) that the document of gift may
be a card designed to be carried on the person.
The American Act does not prescribe a form of gift, but the
Uniformity Commissioners noted the usefulness of cards and the
desirability of standard forms for use by the donor and by the
next of kin. Indeed they prepared “suggested forms” which are set
out in the note to the Uniform Act.8 7 These forms are of course
in conformity with the American Uniform Act. It seems to the
writer that it would be helpful in Canada to have forms that could
be used under the Canadian Uniform Act and under Quebec’s arti-
cle 21.
We have seen that the existing Acts do not define death. The
State of Kansas broke new ground in 1970 in providing a defini-
tion. Its Act states that a person is dead if there is an absence of
spontaneous respiratory and cardiac finction or if there is absence
of spontaneous brain function; and if in the absence of brain
function attempts are made to maintain or restore spontaneous
circulatory or respiratory. function and it appears that they will
not succeed, death will have occurred when these conditions first
coincide. There is a further provision that death is to be pro-
nounced before artificial means are terminated and before any
vital organ is removed.”‘
Returning to article 21, it is notable for its brevity. It does not
attempt to define death or to refer to certification of death by
a physician. Directions for disposition must be made in writing.
Like the Uniform Act, it does not require testamentary form. How-
ever, there is no alternative of oral consent in the presence of at
least two witnesses during the last illness, as there is in our Uni-
form Act.
A last comment on article 21: it permits a person to regulate
the style of his funeral. The Code Revision Office Report states
that the civil law had always recognized a person’s right to specify
in advance the ceremonies to take place after his death and whether
his body will be disposed of by burial, cremation or otherwise. I
know of no comparable legislation in the common law provinces.
As the common law stands, at least in Canada, there is no way
87 Ibid., 31-33.
88An Act Relating to and Defining Death, Sess. Laws Kan. 1970, c.378, re-
printed in Katz, supra, 1085. Compare Beecher, supra, 152-57, 311-18. For an
adverse comment, see Kennedy, (1971) 285 N.EJ.M. 946, quoted in Katz, supra,
1085. For criticism of s.7 of the American Uniform Act, which provides that a
physician shall determine death, see Kusanovich, supra, 246-53.
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of enforcing the wishes of the deceased about his funeral. It would
seem desirable to make effective the direction of the deceased as
Quebec has done, though an enactment to that effect could not
appropriately go into the Human Tissue Gift Act.89
Gifts by Relatives: Gifts in Emergency
Article 22 provides:
A physician may remove a part of the remains, if in the absence of
instructions by the deceased, he obtains the consent of the consort or
nearest relative of the deceased.
This consent is not necessary when two physicians attest in writing to the
impossibility of obtaining it in due time, the urgency of the operation, and
the serious hope of saving a human life.
The death of the donor must be ascertained by two physicians who do not
participate in any way in the removal or in the transplantation.
The first paragraph requires no comment. It is similar in pur-
pose to the Uniform Tissue Gift Act, and simply authorizes members
of the family to make a gift of part of the body where the deceased
has not done so.
The second paragraph has no counterpart in any of the legis-
lation that has been discussed. It is notable in permitting the use
of part of a cadaver where consent cannot be obtained in time,
and where the purpose is to save a human life. This provision
doubtless contemplates heart transplants, though it applies to any
part of the body.
The Committee referred to this provision as highly exceptional,
and they justified it on humanitarian grounds. Solicitude for the
family’s wishes must give way to save a life. The Commission
pointed out the moral duty to go to the assistance of another –
and the taking of an organ is a form of “rescue” of the person
whose life will be saved by the transplant. Once again there has
been a weighing of human need against the rights of the family
over the cadaver and article 22 comes down on the side of human
need.
It
is relevant here to note that in Britain there have been
proposals to change the scheme of the Human Tissue Act of 1961
so as to permit the taking of organs unless the deceased had
forbidden it. Lord Kilbrandon once drafted a section which he
put forward for consideration:
89 The Memorial Society Association of Canada advocates legislation “giving
a person the right to decide how his body is to be disposed of after he is
dead”: Edmonton Journal, 22 May 1973, 3.
19731
ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
In any designated hospital it shall be lawful to remove from a dead person
any organ required for medical or scientific purposes unless the hospital
authorities have reason to believe that the deceased in his lifetime had
forbidden this to be done, provided that such removal shall not disfigure
the dead body.9 0
This has been called a “contracting out” provision which is
the reverse of the “contracting in” provision of the Uniform Acts
and article 21. For the present at least it seems that “contracting
out” legislation in Britain is unlikely.9
It seems to the writer that the second paragraph of article 22
creates an exception to the “contracting in” principle of article 21.
That is to say, it permits the taking of a part of the body without
consent of the person himself, or of his kin.
Autopsies
The last article is 23 C.C. which provides:
An autopsy may be performed only in the cases provided for by law or
with the written consent of the deceased.
It may be required by the attending physician or by one of the persons
mentioned in article 1056.
The persons mentioned in article 1056 are spouse and “ascend-
ant and descendant relations”. This excludes brothers and sisters.
When the Committee prepared the draft article it did not in-
clude the attending physician. He was added in the Code Revision
Office. The article states that the physician or relations may “re-
quire” an autopsy. This would seem to imply that it must be held,
though it may be that “require” means “request”, which would
mean that the decision remains with the coroner.
Traditionally autopsies have been linked with investigations
and inquests into the cause of death where violence or foul play
is suspected. The Coroner’s Act of Quebec, like those of the com-
mon law provinces, specifically permits an autopsy in these cir-
cumstances. 92 In addition, however, there is a provision in the
Study of Anatomy Act which deals with the case of patients dying
in a public institution in which they are supported. The superin-
tendent may order an autopsy when it is necessary to determine
the cause of death.93 In the case of the Notre Dame Hospital in
Montreal its private Act was amended in 1924 to permit the at-
9OWolstenholme and O’Connor, supra, 158.
9 lDworkin, supra, 371-72; Zellick, Organ Transplantation, (1972) 122 New
Law Journal 1078.
92 S.Q. 1966-67, c.19, ss.11, 12 and 18.
93 R.S.Q. 1964, c.250, s.4.
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tending physician or chief house physician to hold an autopsy on
the non-paying patients where desirable from a scientific point
of view and to establish the true cause of death. 4
In the common law provinces the Coroner’s Act invariably
authorizes a post-mortem examination in connection with a coro-
ner’s investigation or inquestf0 The three western-most provinces
have, however, gone further. Saskatchewan and Alberta have similar
provisions in the case where a person has died in a hospital after
an operation. Either the hospital or the next of kin may request
an examination, and the coroner may authorize it.90 British Col-
umbia’s provision differs in that it applies only to a request by
a hospital, not next of kin, and it specifies that the examination
“may be carried out notwithstanding objection thereto by a per-
son entitled to the custody of the body”. 7
Under Quebec’s new article 22 a problem would arise when
the attending physician “requires” an autopsy and the relatives
object. The Act does not deal specifically with this situation. I
think the inference is that the coroner could order the autopsy,
but in practice he might defer to the wishes of the family. As in
the case of transplants from cadavers, sensibilities are involved.
Perhaps the public can be educated to accept the idea of post-
mortem examinations. They add to our knowledge. At the same
time those conducting the examination should try to guard against
disfigurement that would cause the family distress.
CONCLUSION
Sometimes the relations between law and medicine are uneasy.
A distinguished Australian judge has spoken of law “marching
with medicine, but in the rear and limping a little”.9 To the medical
profession the law is often uncertain or unduly restrictive. No
lawyer would say that all of the problems that arise in experi-
mentation and transplantation can be solved by a legal code. In
safeguarding the human subject and at the same time giving proper
scope for medical and scientific progress, there are many non-legal
sanctions or controls. They must supplement the law, or perhaps
it would be better to say the law should supplement them.
Notre-Dame (1933), 71 C.S. 377.
94 S.Q. 1923-24, c.117, s.15, and, as amended, s.20; and see Ducharme v. H6pital
95 E.g., Coroner’s Act, S.O. 1972, c.98, s.23.
96 Coroner’s Act, R.S.A. 1970, c.69, s.18(8); Coroner’s (Amendment) Act, S.S.
1966, c.94, s.6.
97 Coroner’s (Amendment) Act, S.B.C. 1968, c.11, s.12.
98 Sir Victor Windeyer in Mount Isa Mines v. Pusey (1971), 45 A.L.J.R. 88, 92.
19731
ARTICLES 20-23 OF THE QUEBEC CIVIL CODE
The most obvious of these controls is the ethical code. It does
not provide an automatic solution to every problem. However, it
is a healthy reminder to the investigator to be solicitous of the
person who has submitted to the experiment. An ethical code is
not to be read the way Mr Justice Holmes’ bad man looked at
the law –
how far can I go without getting into trouble? It
prescribes a minimum of proper conduct, not a maximum, and it
encourages one to keep above the borderline.
Another instrument to protect the volunteer is the research
committee. It now exists in many institutions; 9 9 indeed the United
States Department of Health, Education and Welfare will make
grants only to institutions having one.100 This committee sets
guidelines, and either by itself or through subcommittees reviews
each application and approves, rejects or modifies it. Sometimes
researchers object to this procedure in the name of academic or
scientific freedom. Assuming wisdom and common sense, these
committees are in my opinion helpful and the opposition in the
name of academic freedom is untenable.
Another sanction that some favour is to persuade professional
journals not to publish the results of research unless it is made
“unmistakably clear in the publication that the proprieties have
been observed”. 0 1
It is also suggested in discussions of ethics (legal as well as
medical) that the most important factor is the character of the
members of the profession. Dr Beecher has put emphasis on the
prime importance of “an intelligent, informed, conscientious, com-
passionate, responsible investigator”.102
These controls should not be regarded as alternatives. Each
has its place and reinforces the other. The more effective they
are, the less the need for legal sanctions.
09See McGiU’s Guidelines, supra. The University of Toronto’s Research
Board has for some years had a Human Experimentation sub-committee. The
University of Alberta Hospital has a Special Services and Research Com-
mittee and the University of Alberta itself recently established a committee
structure and guidelines. See Melmon, Grossman and Morris, Emerging
Assets and Liabilities of a Committee on Human Welfare and Experimentation,
(1970) 282 N.E.SM. 427 and editorial in same volume at 449.
100 Protection of the Individual as a Research Subject, U.S. Gov’t Printing
Office, 1969.
0’0 Beecher, Ethics and Clinical Research, (1966) 274 N.E.J.M. 1354, 1359-60;
see also Editorial, Ethics of Experiments on Children, (1973) 288 N.EJ.M. 791.
s02 Beecher, supra, 1360.
McGILL LAW JOURNAL
[Vol. 19, No. 2
These observations have had reference to experimentation but
to a considerable extent they are applicable to transplants.
A final word in connection with Quebec’s provisions: the com-
mon law has tended to resist codification whereas a Civil Code
like Quebec’s is designed to cover the whole body of law. In times
of quick development there is a temptation to codify too soon,
but on the other hand it is no credit to the law and is frustrating
to the medical and legal practitioner if it is uncertain and hard
to find. Quebec’s new articles are easy to find and remove much,
though not all, uncertainty.
One cannot always foresee how any new legislation will work.
However, Quebec’s new articles have the virtue of stating the main
principles without going into undue detail. Moreover, it is mani-
fest from the Report of the Committee and the Code Revision
Office that the framers not only have a knowledge of the subject
but a compassionate and humanitarian attitude. It is no coinci-
dence that these articles follow immediately articles 18 and 19
which declare the personality and inviolability of every human.10 3
103 The writer acknowledges with thanks the information that he received
from Dr D. I. Buchanan, Medical Director at Edmonton of the Blood Trans-
fusion Service of the Canadian Red Cross Society; and the helpful comments
of Dr Bernard Snell, Medical Director of the University of Alberta Hospital,
who read an earlier draft; and the benefit of discussions with Mrs Margaret
Shone, Legal Officer of the Institute of Law Research and Reform, Edmonton,
who also read an earlier draft.
