Organ donation after circulatory death – legal in South Africa and in alignment with Chapter 8 of the National Health Act and Regulations relating to organ and tissue donation

Main Article Content

D Thomson
M Labuschaigne


Organ donation after a circulatory determination of death is possible in selected patients where consent is given to support donation and the patient has been legally declared dead by two doctors. The National Health Act (61 of 2003) and regulations provide strict controls for the certification of death and the donation of organs and tissues after death. Although the National Health Act expressly recognises that brain death is death, it does not prescribe the medical standards of testing for the determination of brain death (neurological determination of death), circulatory death (circulatory determination of death) or for determination of death based on somatic criteria. However, in all cases of organ donation, including after circulatory death, the National Health Act mandates that two doctors certify the death, with one doctor possessing more than 5 years of experience. Additionally, both doctors must be independent from the transplant team. The standard for such determination, as for brain death, aligns with accepted medical standards. The Critical Care Society of Southern Africa has published South African (SA) Guidelines on Death Determination that outline rigorous standards for death determination in hospital settings by either a neurological or circulatory method. Legislation and the Health Professions Council of SA’s (HPCSA) professional guidance direct clinicians on obtaining informed consent for donation either from the patient or in cases of incapacity from their surrogate decision maker. Collectively, the legislation, regulations and professional guidelines in SA provide a robust ethical framework that supports organ donation after circulatory death.

Article Details

How to Cite
Organ donation after circulatory death – legal in South Africa and in alignment with Chapter 8 of the National Health Act and Regulations relating to organ and tissue donation. (2024). South African Journal of Bioethics and Law, 17(1), e1561.
Research Articles
Author Biographies

D Thomson, Division of Critical Care, University of Cape Town, Groote Schuur Hospital

University of Cape Town

M Labuschaigne, Department of Jurisprudence, School of Law, College of Law, University of South Africa

Professor Melodie Labuschaigne is Professor in Medical law and Ethics in the Department of Jurisprudence in the School of Law, University of South Africa. Her research focuses on the ethico-legal regulation of stem cell research and human tissue, genomic and genetic research and assisted reproduction. She has been involved with the revision and drafting of health legislation for many years and is the recipient of various research excellence awards, spanning four decades. She serves on various boards in different capacities and was appointed in 2020 on the National Health Research Ethics Council.

How to Cite

Organ donation after circulatory death – legal in South Africa and in alignment with Chapter 8 of the National Health Act and Regulations relating to organ and tissue donation. (2024). South African Journal of Bioethics and Law, 17(1), e1561.


Gardiner M, Charlesworth M, Rubino A, Madden S. The rise of organ donation after circulatory death: A narrative review. Anaesthesia 2020;75(9):1215-1222.

Department of Health. National Health Act No. 61 of 2003.

Department of Health. Regulations regarding the general control of human

bodies, tissue, blood, blood products and gametes. Government Gazette No.

Published under Government Notice R180 of 2 March 2012, GG35099.

Health Professions Council of South Africa. Booklet 1: General ethical guidelines for the healthcare professions (accessed December 2021). https://www.hpcsa.

Practice_vDec_2021.pdf (accessed 20 September 2023).

Thomson D, Jouber I, De Vasconcellos K, et al. South African guidelines on the

determination of death. S Afr Med J 2021;111(4), 367-380.


Republic of Uganda. The Uganda Human Organ Donation and Transplant Act, 2022. Date of assent: 25 March 2023.

Arsava EM, Demirkaya S, Dora B. Giray S et al. Turkish Neurological Society- Diagnostic guidelines for brain death. Turk J Neurol 2014; 20(3); 101-104.

Greer DM, Shemie SD, Lewis A, et al. Determination of brain death/death by neurologic criteria: the World Brain Death Project. JAMA 2020; Sep 15;324(11):1078- 1097.

Shappell CN, Frank JI, Husari K, et al. Practice variability in brain death determination: A call to action. Neurology 2013;81(23):2009-2014. https://doi. org/10.1212/01.wnl.0000436938.70528.4a

Wijdicks EF. Brain death worldwide: Accepted fact but no global consensus in diagnostic criteria. Neurology 2002; Jan 8;58(1):20-25. wnl.58.1.20

World Health Organisation. Clinical criteria for the determination of death. 2014. 2017.5-eng.pdf (accessed 20 September 2023).

Zorko DJ, Shemie J, Hornby L, et al. Autoresuscitation after circulatory arrest: An updated systematic review. Can J Anesth/J Can Anesth 2023;70:699-712. https://

Shemie SD, Wilson LC, Hornby L, et al. A brain-based definition of death and criteria for its determination after arrest of circulation or neurologic function in Canada: A 2023 clinical practice guideline. Can J Anaesth 2023;70(4):483-557.

Beauchamp T, Childress J. Principles of biomedical ethics. 5th ed. Oxford: Oxford University Press; 2001:64-66.

Health Professions Council of South Africa. Booklet 4: Seeking patients’ informed consent: The ethical considerations. December 2021. https://www.hpcsa. vDec_2021.pdf (accessed 21 September 2023).

Department of Justice and Constitutional Development. Act No. 58 of 1959.

Bookholane H, Michaelides L, Prins L, et al. Factors influencing consent rates of deceased organ donation in Western Cape Province, South Africa. S Afr Med J


Ralph A, Chapman JR, Jonathan G, et al. Family perspectives on deceased organ donation: Thematic synthesis of qualitative studies. Am J Transplant


Merchant SJ, Yoshida EM, Lee TK, et al. Exploring the psychological effects of

deceased organ donation on the families of the organ donors. Clin Transplant


Manara AR, Murphy PG, O’Callaghan G. Donation after circulatory death. Br J

Anaesth 2012 Jan;108 Suppl 1:i108-121.

Hare G. The dead donor rule: Ethical implications and limitations of the DDR. March 2023. dead-donor-rule-the-ethical-implications-amp-limitations-of-the-ddr (accessed

September 2023).

Gardiner D, McGee A, Shaw D. Two fundamental ethical and legal rules for

deceased organ donation. BJA Educ 2021;21(8):292-299.


Tennankore KK, Klarenbach S, Goldberg A. Perspectives on opt-out versus opt-in legislation for deceased organ donation: An opinion piece. Can J Kidney Health Dis 2021;16(8):20543581211022151.

Viñuela-Prieto JM, Escarpa MC, Falcón FJC, et al. Family refusal to consent donation: retrospective quantitative analysis of its increasing tendency and the associated factors over the last decade at a Spanish hospital. Transplant Proc 2021;53(7):2112-2121.

United Kingdom. Organ Donation Taskforce. Working together to save lives - The Organ Donation Taskforce Implementation Programme’s Final Report. 2011. attachment_data/file/216242/dh_131789.pdf (accessed 21 September 2023).

United Kingdom. Organ Donation Taskforce. Organs for transplants - A report from the organ donation taskforce 2008. umbraco-assets-corp/4245/organsfortransplantstheorgandonortaskforce1streport. pdf (accessed 21 September 2023).

Du Toit T, Manning K, Thomson D, Muller E. Kidney transplantation utilising donors after circulatory death–the first report from the African continent. Transplantation 2018;102: S493-S494.

Similar Articles

You may also start an advanced similarity search for this article.