Kidney transplantation is the treatment of choice for many patients suffering from end-stage renal disease and is associated with a lower incidence of morbidity,¹ a higher quality of life ² and favorable cost effectiveness³ as compared to chronic renal dialysis therapy. As a consequence of organ shortage , however, the average waiting time for a deceased donor kidney has steadily increased over the last decade and currently exceeds 1.5 years for children and 3.5 years for adults in the Eurotransplant region.⁴ In order to reduce long waiting times on the deceased donor list, living donor kidney transplantation has become a well-established practice in many countries.⁵ Living donor kidney transplantation not only reduces the risk of future morbidity as a consequence of long-term dialysis , but also confers better graft and patient outcomes as compared to deceased donor transplantation. A thorough donor screening process ensures optimal quality of the donor kidney and semi-elective timing of the donation allows for a minimal cold ischemia time. Indeed, increasing the duration of pre-transplant dialysis treatment has been associated with an increased risk of patient death and graft failure.⁶ Specifically, one study found that patients undergoing pre-emptive kidney transplantation, defined as kidney transplant procedures without preceding dialysis treatment, had a 37 % lower risk of death-censored graft loss compared to kidney transplant patients that received a 6–12 months dialysis treatment prior to transplantation.⁷

Living donor kidney transplantation, however, is only possible when a suitable living kidney donor is available. Even though for young recipients, parents or other family members often step forward to donate a kidney, it remains unclear whether, and under what conditions, minors should qualify to become a living kidney donor as well. In most countries, minors are legally prohibited from acting as living kidney donors in order to “provide legal certainty and maximize the legal protection of minors”(Lopp 2013). In other countries, such as Sweden, the United Kingdom and the United States, living kidney donation by minors may be legal under well-defined conditions and circumstances. In the United States, for example, 49 minors under the age of 18 donated a kidney between 1988 and 2013 (U.S. Organ Procurement and Transplantation Network 2013). Also in Europe and Canada, cases of living kidney donation by minors were reported.⁸

In a previous study,⁹ we found that guidelines and position papers adopt different approaches, and under what conditions, living kidney donation by minors could be appropriate. Most guidelines advocate an absolute prohibition on living kidney donation by minors. These guidelines express concerns about minors’ lack of cognitive and psychosocial maturity to make a decision about the donation; the conflict of interest that parents might experience when making a decision about living kidney donation by one of their children for the benefit of another child; and the medical and psychological harm a minor might be exposed to as a consequence of donation. Finally, the concern exists that minors might be considered as potential living kidney donors, “without there being a desperate medical need or reasonable chance of success”(Thys et al. 2013), given that other treatment options are available, including kidney grafts from deceased donors or living donors that are over 18 as well as dialysis treatment.

Other guidelines, however, would occasionally allow living kidney donation by minors under the provision of adequate safeguards. Four different safeguards were identified in our systematic review . First, the donation should be authorized by a qualified independent body , such as a court or an ethics committee . Second, the minor’s decision-making capacity and autonomy should be independently assessed. Third, the procedure should be deemed consistent with the minor’s best interest . Fourth, living kidney donation by minors should only be allowed as an ultima ratio, when all other opportunities for donation or treatment alternatives have been exhausted.

In the light of these conflicting views, a more scrutinized analysis of the arguments in favor of and against an absolute prohibition of living kidney donation by minors may help us to critically re-evaluate the appropriateness of living kidney donation by minors and to take a more unified approach towards this phenomenon. Therefore, in this chapter, we aim to present the main arguments in favor of and against an absolute prohibition of living kidney donation. These arguments will be presented in three thematic categories, representing the main ethical aspects that have been identified in the previously discussed review.¹⁰ These aspects concern the ability of minors to make an informed and deliberate decision about living kidney donation, the assessment of whether acting as a living kidney donor could be in accordance with the best interest of the minor and the appropriateness of parental consent and independent authorization.

The first aspect concerns the ability of minors to provide informed and free consent to living kidney donation. Opponents of an absolute prohibition of living kidney donation by minors argued that the ability to make an informed and deliberate decision about living kidney donation does not primarily depend on one’s chronological age, but rather on one’s level of maturity and understanding.¹¹ It was argued that decision-making capacity does not suddenly appear at the age of 18, but gradually develops during childhood and adolescence. Therefore, minors may already possess sufficient maturity to understand the nature of the procedure, to weigh the risks and benefits of the procedure, and to make and communicate an autonomous decision. Referring to the Piagetian theory of cognitive development, one study suggested that minors age 13 and older, that are in the formal operations stage of cognitive development, may have similar capacities as adults to provide informed consent.¹² Moreover, some commentators remarked that in many countries, minors who can demonstrate sufficient maturity are legally allowed to make their own decisions in many health-related areas, including consent to treatment and participation in research .¹³ Indeed, a study by Stultiëns et al. concluded that minors are allowed to make legal decisions concerning the provision of their own health care in many European countries, either from a fixed minimal age onwards or based on an ad hoc evaluation of their age and level of maturity.¹⁴ Correspondingly, one commentator contended, that “allowing mentally sophisticated minors to consent to organ donation appears to be a logical step” (Zinner 2004). Another commentator stated, that “if the minor is found sufficiently competent, then he should be treated no differently from a competent adult donor”(Broeckx 2013).

However, the idea that minors may be competent enough to consent to living kidney donation was criticized. Critics held that the former position focuses too strongly on minors’ cognitive capacities , disregarding the psychosocial factors that may prevent minors from making a sufficiently deliberate and autonomous decision. A study about the ethical aspects of living liver donation by minors emphasized that the transition period from childhood to adulthood is characterized by several psychosocial developmental challenges that may impact their decision-making capacity .¹⁵ These psychosocial factors are at least partly associated with biological developments and brain maturation processes that may continue until one’s mid-twenties.¹⁶ They include an increased susceptibility to peer pressure, higher perceptions of invulnerability and a lack of sensitivity to long-term consequences of one’s actions.¹⁷ Moreover, it was argued that minors are largely dependent on their parents for financial, emotional and psychosocial support, and therefore might be prone to conscious or unconscious family pressure or coercion.¹⁸

The second aspect concerns whether living kidney donation by minors could still be considered appropriate, if the procedure is deemed compatbile with the minor’s best interests . In this regard, Crouch and Elliott (1999) made a distinction between two types of interests. First, minors have interests in their own physical and psychosocial wellbeing that are referred to as self-regarding interests . Second, minors also have other-regarding interests , which are defined as interests in the wellbeing of other people, “at least partly as an end in itself”(Crouch and Elliott 1999). In the following paragraphs, we will discuss each of these types in turn.