A presumed consent system for organ donation

Earlier this month, Gordon Brown, writing in the Sunday Telegraph, voiced his support for a presumed consent system for post-death organ donation in the UK. At present, organs may be procured from a dead body without the family’s consent if the deceased had actively opted-on to a national organ donation register. Under a presumed consent system, all would be included on the register unless they had actively ‘opted out’.

Objecting to Brown’s proposal, the economist and journalist Irwin Stelzer writes in the Telegraph this week:

90 per cent of us favour organ donation, but only 25 per cent make advance arrangements to become donors. From that, the opt-out advocates conclude that most of the non-donors are merely negligent: they forget to register. Really?

It is equally plausible that non-participants have no objection to the procedure, but simply do not want to participate, just as many (most) people have no objection to elections, but choose not to participate, for reasons sufficient unto themselves.

This objection strikes me as unpersuasive.

Suppose that Stelzer is right that some of the 65% of people in question have a personal preference against their own organs being taken, even though they approve of organ donation in general. Any of these people that have a strong preference against organ donation will presumably ‘opt out’ under a presumed consent system – so they would have nothing to fear from a change in policy. Only those with merely a mild preference against organ removal – a preference that is insufficiently strong to motivate opting out – will have their organs removed against their wishes. And it is far from clear that such mild preferences should prevent organ procurement.

Harvesting organs from a deceased body may save the life of another person. Indeed, it may save several lives since different organs from a single body can can be transplanted into multiple recipients. Thus, respecting a person’s mild preference that organs not be removed has tragic costs. And it is far from clear that we should accept these costs – the loss of multiple lives – merely so that we can respect one person’s mild preferences. For there are all sorts of cases in which we overide a person’s preferences about what is done to her body after death (a) in order to avoid much lesser costs, and (b) despite the fact that, in doing so, we over-ride very strong and deeply-held preferences.

Consider the case of someone who has an extremely strong preference that her body is buried in some favourite childhood haunt. The state might intervene to prevent this (and justifiably, most of us would think) merely because burying the body there would present a small risk to the local environment, or because the land in question happens to be owned by someone else.

It might be objected that this scenario has little in common with cases involving organ removal, since there is no breach of the deceased person’s bodily intergrity. Organ removal against the wishes of the deceased is particularly problematic, it might be thought, because it over-rides the absolute (or near-absolute) requirement that we not breach the bodily intergrity of another person without his consent. However, the cases in which one persons bodily intergrity is seen as imposing an absolute constraint on what others may do are typically cases in which the body in question is living. It is far from clear that any absolute requirement to respect bodily intergrity extends to dead bodies.

Moreover, and more importantly, it is also easy to think of cases in which we feel justified in compromising the integrity of a dead body despite the (perhaps strong) wishes of the deceased, and to avoid costs much less severe than the loss of several lives. Consider the case of forensic post-mortems. In most countries, the state may order that a deceased body undergo a post-mortem examination if this may aid a criminal investigation. Indeed, post-mortems can normally be performed in such circumstances even if the deceased had, or would have had, a fundamental ethical or religious objection, let alone a mild preference.

If the state can justifiably order post-mortems despite very strong objections from the deceased and merely in order to aid a criminal investigation, then it is difficult to see how it could not be justified in authorising the harvesting of organs for transplantation  desipte a mild preference against such harvesting on the part of deceased. After all, the saving of multiple lives is surely a more important goal than the advancement of an average criminal investigation.

References:

Gordon Brown, ‘Organ donations help us make a difference’, The Sunday Telegraph, 13 Jan 2008.
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/01/13/norgans213.xml

Irwin Stelzer, ‘Gordon Brown should pay donors for organs’ The Daily Telegraph, 22 Jan 2008.
http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2008/01/23/do2302.xml

Related links:

How to become a donor in the UK http://www.uktransplant.org.uk/ukt/how_to_become_a_donor/registration/consent.jsp

Current UK legislation
http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4103686.pdf

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5 Responses to A presumed consent system for organ donation

  • Tom, you say “If the state can justifiably order post-mortems despite very strong objections from the deceased and merely in order to aid a criminal investigation, then it is difficult to see how it could not be justified in authorising the harvesting of organs for transplantation despite a mild preference against such harvesting on the part of deceased.”

    I don’t think that works. It is his body and using it against his wishes is theft. The interest that the victim of a crime has in his victimiser being punished allows a defeasible presumption of consent to autopsy. Harvesting his organs is done not for his interest but for someone else’s benefit and a mild preference against such use means consent is lacking. What we should do is institute a market in organs. Someone with a mild preference against may well give pre-mortem consent for the right price and who are we to restrict freely made trades?

  • Tom Douglas says:

    Thanks for your comment Nick. I take your point regarding the presumptive interest that a victim of a crime has in the criminal investigation being solved, and I agree that a market in organs might be one good solution to the organ shortage. But I still think that the state can be justified in over-riding a deceased individual’s mild preference that her organs not be harvested. We tolerate the state ordering post-mortems for forensic purposes even when it is clear that this is not where the deceased interest’s lie, all things considered – say because the deceased had a strong religious objection to any post-mortem breach of bodily integrity. This may be because we don’t think that a person does actually have a property right over his future deceased body (in law, I don’t think he does). Or it may be simply because we think that any property right that he does have is non-absolute, like many, if not all, of our other property rights. I think I am justified in pushing an empty car into the path of an empty truck that is careering down a hill towards a cyclist, even if I know that the owner of the car does not want me to do this. So the car-owner’s property right seems to be non-absolute.

    As an aside, even if I am wrong about all of this, it seems quite likely that a presumed consent system would be preferable to the existing system (even if a market system would be better still). A presumed consent system would harvest some organs from people who would have wanted otherwise, but ‘opt-in’ systems also fail to take organs from many people who would have wanted their organs to be transplanted. (Stelzer may be right that some of the non-consenters in opt-in systems would prefer that their organs be left in place, but he certainly hasn’t shown that this would be the case for all or even for a majority.) Thus, if, as you say, using a body against a the deceased person’s wishes is theft, then both opt-in and presumed consent systems involve theft, and it is an empirical question which involves more cases of theft.

  • Tom, it’s true that we do post-mortems on people who object, but perhaps we shouldn’t. I’m not so happy with the analogy of the empty car, simply because self-ownership is not merely another example of a property right but is the ground of such rights.

    I’m not following how an opt-in system involves cases of theft, let alone might involve more. Any use without consent is a theft, so all cases of merely presumed consent would be thefts.

    A final suggestion: the reason we are in such a mess with organ transplants is precisely because the laws immorally fail to respect our self-ownership. No polity that properly respected self-ownership would have prohibited the sale of organs by their owners.

  • Tom Douglas says:

    Thanks again Nick. Just a couple of points.

    – I don’t think that one’s future dead body is part of one’s self, so I’m not sure how self-ownership rights are relevant to the organ donation debate. If one has any ownership right over one’s future dead body, I think this must be more like the kind of ownership right that we have over material possessions. Hence the car example.

    – I shouldn’t have phrased my second point in terms of theft. My point was simply that both presumed dissent and presumed consent systems will sometimes treat dead bodies in ways that the deceased person would not have wanted (in one case by transplanting organs, and in the other case by failing to transplant organs). Personally, I wouldn’t describe either as cases of theft. But both strike me as equally problematic. Therefore I’d favour the system that wins out on some other ground (e.g. saves the most lives).

    Of course, even if it is more problematic to over-ride mild wishes not to donate than mild wishes not to donate, I’d still favour an opt-out system for the reasons I gave in my original post.

  • Nick,

    you suggested that
    “the reason we are in such a mess with organ transplants is precisely because the laws immorally fail to respect our self-ownership. No polity that properly respected self-ownership would have prohibited the sale of organs by their owners.”

    I know this was an aside, but I think that you overstate this point somewhat. Organ sale would help little with most of the organs that are in critically short supply – heart, lung, pancreas, liver, since these organs are not able to be donated from living donors.

    cheers
    Dom

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