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Hypothetically donated organs

Every day three people die in the UK while waiting in the transplant queue. In the face of the urgency to increase the organs available, some propose introducing economic incentives. A more moderate solution consists in choosing a public policy with an appropriate default option, that is, a condition that is imposed on individuals when they fail to make a decision. A default option influences policy-outcomes in two ways: a) it can have a direct impact on people’s choices because they might interpret it as the option recommended by society; b) the effort involved in making a decision as opposed to accepting one –e.g. filling a form, having to think about one’s death, etc.- nudges people towards the default option.

Regarding organ transplantation, legal systems are divided between opt-out systems in which everybody is an organ donor unless she has registered not to be, and the so called opt-in systems that consider that nobody is an organ donor unless they have registered to be one. Countries with an opt-out system like Austria, Belgium or Spain tend to have higher organ donation rates. This fact is often used as a strong argument in favour of taking consent as the default option. Unlike the countries mentioned, UK has an opt-in policy. However, the Welsh are trying to pass a piece of legislation that would allow them to establish an opt-out system. Their initiative reopens the debate about the pros and cons of the two systems. Those who oppose introducing an opt-out system in the UK make the following claims:

First, in an opt-out system we cannot speak of organ donation as an altruistic act. The idea of donation as a gift is deeply embedded in many people’s minds. The recipients of organs, in particular, have sometimes said that it’s easier to accept an organ if one can be certain that it is freely given and does not come from somebody who didn’t want to donate. An opt-out policy does not exclude the latter possibility. So, even if it results in a larger supply of organs, it is not necessarily the best alternative because it can create emotional distress to those who receive the organ. This reason clearly supports an opt-in system but it has further consequences that its defenders might find difficult to accept. For instance, some people might be distressed by the possibility of having to live with a heart that belonged to a serial killer and the idea of receiving a kidney from a black donor could be equally burdensome for a racist. What should we do in these cases? If we allow the moral convictions of the recipients to play such a role we should not only have an opt-in system but also allow people to know where the donated organs come from. It seems that we should abandon the anonymity principle that informs our current systems – both opt-in and opt-out- and that prevents different kinds of discrimination. One could try to argue that only appropriate convictions should be taken into account. This strategy requires identifying what makes a conviction appropriate for that matter which is not an easy task. Some Jews, for instance, might have trouble accepting an organ that comes from an Arab donor. They will argue that their conviction is appropriate and should be respected because it is deeply connected with their religious beliefs.

Second, an opt-in system is more respectful to people’s wishes. A system in which people have to give their consent explicitly is the best way to guarantee that any donation is adequately authorized. Failure to opting out does not always mean that the person agrees to donate. If mechanism b) works it’s quite likely that we’ll end up removing organs against the will of their owner just because he was unorganized, lazy or too scared to think about his death. Confronted with this objection, those who are in favour of an opt-out system could respond that their default option is, in fact, the one that better captures the unexpressed wishes. It has been reported that between 65% and 90% of the population in the UK would donate their organs but only 25% have given explicit consent. In this context, an opt-out policy certainly seems to better respect people’s preferences. However, despite the actual numbers, establishing a presumption with the aim of expressing what people really think is bound to be problematic because the wishes of some will always be unrepresented.

What seems to me a better strategy to defend an opt-out system is to abandon the idea of trying to capture people’s real unexpressed preferences, i.e. the ones that they actually have, and focus instead on their ideal ones, i.e. the preferences that they would have if they were to engage careful deliberation about their preferences in ideal circumstances, namely, knowledge of the pertinent information, awareness of basic moral principles and capacity to think without making reasoning errors. There are two possible and complementary ways of arguing that the ideal preference of most people is to become a donor. On the one hand, we can employ a positive strategy and show that there is a prima facie moral duty to donate our organs that people would acknowledge under ideal circumstances. We can use Peter Singer’s general argument that says that if we can prevent something bad without sacrificing anything of comparable significance, we ought to do it. Death is certainly something bad and the cost of giving our organs after death is non-existent or comparatively smaller –if we think that someone can be harmed after death. On the other hand, we can complement the argument just made by showing that, very often, the preference for not giving organs is informed by false and distorted beliefs. Some people are motivated by unjustified feelings of distrust such as that you might not actually be dead when organs are removed and that doctors make less effort to keep you alive if they know that you are a donor. Some are moved by an aesthetical concern and are afraid of the disfiguration of their body, and others simply don’t accept that brain death is, in fact, death. These beliefs are myths and they should not result in deaths. An opt-out system is not fully insensitive to distorted beliefs because those who hold them can refuse to donate. However, because of its nudging effect, it clearly reduces the impact of these beliefs in the pool of available organs compared to an opt-in policy.

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12 Comment on this post

  1. “and others simply don’t accept that brain death is, in fact, death. These beliefs are myths and they should not result in deaths.”

    Even if one accepts that brain death is, in fact, death, there is still the empirical issue of correct diagnosis. There is a high misdiagnosis of people being a Persistent Vegetative State, when they are not. If an individual is an organ donor, his/her family may feel they should seek to have his/her life terminated (or nutrition withheld etc) in order to donate organs, being unaware of the high chance of misdiagnosis.

  2. Thaler and Sunstein suggest what they call a ‘forced choice’ system – currently to get a drivers’ license it is compulsory to provide your name and photograph; they suggest it should also be compulsory to provide your yes-or-no organ donation preference.

    1. jahel queralt lange

      Thanks Matt and Michael for your comments

      Matt, what you point out, if true, it’s unfortunate. However, I think that what leads the family to take this decision is the prospect (even if incorrect) of seeing that person in a vegetative state. That is, it is not the possibility of donating her organs but the wrong diagnosis what motivates them.

      Michael, I am aware of the “mandatory choice”. As far as I know, it is proposed in order to eliminate, as much as possible, the uncertainty about people’s wishes that exists in our current systems – opt-in or opt-out-. In that respect, the policy might still be defective due to the fact that: a) people can, an often do, change their view about that matter; and b) because not everybody has a driving license, it would be better to find another way to make the choice compulsory.

      Besides that, I think that the main problem with a mandatory choice scheme is that it gives too much weight to people’s uninformed and irrational preferences. Those who belief in the myths that I point out will certainly withdraw their consent. The good thing about an opt-out system is that it’s centered on what is good for the society as a whole and tries to maximize it, even if only by nudging people and not with their actual consent.

  3. There are other options in addition to opt-in, opt-out or mandatory choice, and one would be to allow the next of kin to choose in case of no prior decision by the deceased. This strikes me as the most liberal approach to take.

    More generally, would it help to regard a recently deceased (that is to say legally dead, whatever the legal definition of death may be) person’s body as part of his or her estate? The issue of donation would then naturally become an issue to be considered when one makes one’s will. Some would doubtless object that this erodes the distinction between one’s body and one’s possessions, but how useful is this distinction? Arguably its usefulness is negative since it underpins much of the resistance to economic incentives.

  4. jahel queralt lange

    Thanks Peter for your message. Your proposal of considering someone’s body as part of his estate is certainly inventive. However, I don’t see how it avoids the issue of having to adopt a default option. We cannot force people to write their will and it happens quite often that people die without it. Our systems have rules that apply in these cases and that protect the interests of the deceased’s closest relatives – e.g. her children. So, even if we follow your suggestion we need to decide if we consider those who die without will as donors by default or not.

  5. Indeed, and it was precisely this that gave me the idea that by default the decision should fall to the next of kin. That way the deceased’s closest relatives can decide for themselves what they consider to be in their best interests (which will generally depend on their values and their perception of the deceased’s preferences).

  6. Why should the next of kin's interests take priority over those of an existent seriously ill person?

    Furthermore, in a period of incredible sadness and stress after the loss of a loved one, would the close relatives even make a decision which conforms with their genuine long-term beliefs? It seems conceivable to me that even someone who is strongly in favour of organ donation may, in the heat of the moment, decide they don't want their loved ones organs to be used, but then for the rest of their life regret that they did not take the opportunity to help others.

  7. jahel queralt lange

    I agree with Matt, someone might refuse to donate his relative’s organs influenced by the conditions under which he has to take that decision which are clearly not favorable to think reasonably about this issue. Actually, it has been pointed out that one of the advantages of an opt-out system (specially a hard one like the Austrian in which the family does not intervene) is, precisely, that relatives are relieved of the burden of having to make that decision at such a stressful time.

    One the other hand, there is no guarantee that they will decide considering the wishes of the deceased person and not their own. Besides that, my initial point was that, considering that the stakes are high,
    individual's preferences regarding donation shouldn't matter that much because they are often distorted.

  8. In answer to Matt's first question, the idea was prompted by the analogy with the deceased person's estate. The problem I have with using directly utilitarian arguments (i.e. Of the type, "Whom does the organ benefit the most?) is that it seems somewhat difficult to distinguish it from Marxism: everything belongs the state, and it is for the state to decide on the most benevolent allocation of resources. There are countless instances where objectively speaking a resource is misallocated in terms of who would benefit most from it, but we generally consider (perhaps as an instance of rule utilitarianism) that the choice must reside with the legal owner. If we consider that a deceased person's kidney, unless otherwise provided for, belongs to the state, why not the rest of his or her estate?

  9. OK but then why have property rights at all? If I can't leave my belongings to my children, friends, pet dog or whatever, why should I be able to spend the wealth I have acquired while I'm alive?

    Of course if there was a 100% inheritance tax, I'd try to make sure I'd disbursed my wealth in accordance with my wishes *before* I died.

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