Here’s what happened the first time the United States assumed people wanted to be organ donors
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.
Orentlicher’s paper focuses exclusively on the United States, and so it is hard to not to wonder whether this is not another possibly curious case of American exceptionalism (although he does cite statistics from other countries showing both an increase in available organs from presumed consent policies and some backlash leading to repeals). But the paper is not an anti-presumed consent argument, nor a strong actual consent one. Instead, it’s a rather even-handed approach to the issue. At one point, he writes:
Even with these questions, presumed consent would seem to result in fewer errors than does a requirement of actual consent. After all, in a presumed consent system, no more than 30 percent of the public would become unwilling donors by failing to lodge their objections to donation (since less than 30 percent of the public objects to organ donation). In contrast, under the current system, more than 70 percent of the public could fail to express their desire for donation and lose their opportunity to become donors.
Then later, he writes:
While one policy may reflect the preferences of the majority, the minority may have more at stake in the decision whether to take organs without actual consent. In other words, the harm from an erroneous donation under presumed consent may be greater than the harm from an erroneous non-donation under actual consent. And often in balancing risks of error, we compare not only the number of people that might be wronged but also the magnitudes of the risks of error.
Rather than a pro- and anti-presumed consent policy argument, it is better to read the paper as a warning on what else might need to accompany a presumed consent policy, such as medical consultation and outreach, greater transparency for the public about donors and recipients, and independent monitoring to ensure professional practices are being followed. The implementation of a presumed consent policy is “highly uncertain,” he writes at the end, warning policymakers about the mirage of quick and easy results, while at the same time undermining any claim that presumed consent will be an inevitable failure based on history alone. Well worth the read for all interested in the subject.