Indiana law professor David Orentlicher has a working paper (forthcoming in the Rutgers Law Review) about the potential pitfalls of implementing a presumed consent organ donation policy in the United States. Part history, part policy advisory, Orentlicher points out that presumed consent laws for body parts like corneas and pituitary glands were adopted in a number of states in the second half of the twentieth century – reaching a peak in 1980s – with underwhelming success. Their failure, he says, was due to family member remonstrations at the actual moment of organ removal on religious, medical, and ethical grounds. The result was either fewer organs donated than originally presumed, and in some circumstances a public backlash.
Here’s what happened the first time the United States assumed people wanted to be organ donors