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If you suffer from kidney failure, and you need a new kidney, you may need to wait nearly a decade before you can get a donor.

Based on statistics released by the Ministry of Health in 2016, while the number of people on the waiting list for a kidney transplant has decreased to 276 in 2016, from a high of 563 in 2007 (mainly due to such people either becoming too sick for a transplant, or dying), the average wait time for a kidney donation is still nine to 10 years, and 1 to 2 years for a liver or heart.

As the Straits Times reported in 2016, despite recent legislative changes making it easier for organs to be harvested from the deceased, many people with heart and liver failure here die each year, and thousands with kidney failure are on dialysis. With 80% of patients above the age of 51, according to the National Kidney Foundation (NKF), time is running out for many of these patients. In fact, the Straits Times also reported that on average, about five people in Singapore lose the use of their kidneys each day, with the Republic reporting one of the highest rates of kidney failure in the world.

Which is why ALL Singaporeans and Permanent Residents (PRs) are automatically added to a national organ transplant register

Under Singapore law, the legalities of organ transplants are overseen by two laws: the Human Organ Transplant Act (HOTA) and the Medical (Therapy, Education, and Research) Act (MTERA).

HOTA — Singaporeans and PR to donate their organs by default

The Human Organ Transplant Act, or HOTA, is a compulsory organ transplant Act that, by default, automatically allows the authorities to remove any organ including the kidneys, heart, liver and corneas from a deceased Singaporean or PR who has died in a hospital, for the purpose of transplanting the organ to the body of a living person – so long as the deceased’s organs are suitable for transplant, and there are suitable recipients for the organs.

However, this Act does not apply to:

Non-Singaporeans

Anyone who is under the age of 21

Mentally disordered (without prior permission from their parent or legal guardian).

There was an upper limit of 60 years which has now been removed.

All Singaporeans and Permanent Residents who turn 21 will be notified of their responsibilities through a letter from the Ministry of Health (MOH), and how they can opt out if they so wish.

You may opt out of HOTA to donate your organs, although this is discouraged

If you are a Singaporean or PR, and you do not wish to allow your organs to be donated to others upon your death, under Section 9 of the HOTA, you may apply to opt-out from the Act by filling up and submitting a form to the MOH.

However, the HOTA disincentivises such behaviour of opting out of the scheme, by inserting a clause under Section 12 (a) – which states that if someone has opted-out of HOTA, that person would be considered a lower priority on an organ transplant waiting list compared to someone who remains on HOTA.

Nevertheless, if you subsequently withdraw your objection, and you do not change your mind again within a two-year window, you will be placed back on the same priority ranking on the organ transplant waiting list as a person who did not choose to opt out of HOTA.

When exactly will organs be removed under HOTA?

A deceased Singaporean or PR will have his or her organs removed only after brain death is certified by accredited doctors. This stringent criterion, which is in line with other countries like the US, Australia and the UK, means that organs are only removed if there has been catastrophic irreversible brain injury and all brain functions are lost.

MTERA – A voluntary opt-in organ donation scheme for anyone

The Medical (Therapy, Education and Research) Act, or MTERA, is an opt-in scheme for organ donation. Unlike HOTA, MTERA is completely voluntary, and is open to all individuals living in Singapore, aged 18 and above, regardless of their nationality. Under MTERA, you may choose to give all or any part of your body to a hospital or educational institute for the purposes of research, medical or dental education; or to donate your organs to people who need a new replacement organ.

Additionally, if you were below the age of 18, or if you did not previously register your application to donate your body under MTERA, your family members or relatives may make the decision for you to donate your body immediately before, or after your death, so long as there was no indication that you opposed the idea.

For an example of how MTERA can help to make a difference in someone’s life, you may wish to read about how the heart of the late Carmen Mark, a Malaysian who was studying in Singapore at the time of her untimely death, continues to give new life to a Singaporean mother of three children.

Frequently asked questions on HOTA and organ donation

Question 1: I am a Muslim, is it acceptable for me to donate my organs after my death under the Human Organ Transplant Act (HOTA)?

Yes. The Islamic Religious Council of Singapore (MUIS) had previously issued a fatwa in July 2007, allowing Muslims to come under HOTA. For more information on this, you may refer to a booklet published by MUIS on this topic here.

Question 2: I had previously signed an Advance Medical Directive (AMD). Will this have any effect on the application of HOTA?

No, an Advance Medical Directive (AMD) operates independently from HOTA. An AMD is a legal document you sign in advance to inform your doctor that you do not want the use of any life-sustaining treatment to be used to prolong your life in the event you become terminally ill and unconscious and where death is imminent.

Have a question on HOTA or organ donation?

If you have any questions on HOTA or organ donation, you can get a Quick Consult with Lau Kah Mei or other lawyers for a transparent, flat fee of S$49. You can expect a call back within 1-2 days on the phone to get legal advice and have your questions answered.

This article is written by Lau Kah Mei from LKM Law Corporation and edited by Tang Chee Seng from Asia Law Network.

This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.