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.

3 Responses to “Here’s what happened the first time the United States assumed people wanted to be organ donors”

  1. Erik Says:

    What if, regardless of presumed consent status, the State forced a simple choice:
    You’re allowed to not donate organs, and here (insert policy) is a (hopefully simple) way to opt out of organ donation. However, if you should to forgo begin an organ donor, you are no longer capable of accepting organs (whether lifesaving or not).

    If my understanding is correct (a big If, but slightly beyond assumption), those who choose not to donate organs for religious reason also reject them on similar principle.

    In simple terms, this would allow people to decide for themselves whether they believed in the goodness of humanity or not – and they could decide for themselves whether to invest in the organ donor bank or not… You could hardly argue that it were cruel or unfair – because all you have to do to receive an organ transplant should you require one is sign up for it.
    There would probably have to be a ‘one chance one choice final decision’ at some point, whereby changing your decision after making it became very complicated… Clearly there are a lot of details to be sorted out, but the simplicity of ‘are you in or not’ attracts me greatly.

    As a Canadian (in Canada, blood donors are remunerated with doughnuts and pop, not dollars), I’m curious how effective blood donation would be if a similar program were started here.

    I think most people don’t donate organs or blood because they’re lazy or selfish – but if it cost them the possibility of not being helped when they need it (in fundamental economic terms, that’s the same opportunity they deny others by not donating).

    I suspect there would be a long line at the blood clinics and a few people filling in donor cards if they could no longer rely on the kindness of strangers without being a kind stranger themselves…

  2. Erik Says:

    OKAY for spell checker:

    However, if you should to forgo begin an organ donor = However, if you should forgo being an organ donor…


    … but if it cost them the possibility of not being helped when they need it (in fundamental economic terms, that’s the same opportunity they deny others by not donating), THEN they’d likely rethink their strategy.

    My apologies.

  3. sparky Says:

    i recently had a dogs heart donated to me and i sometimes have urges to pee on trees and bark will you please tell me why..

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