Organ Transplantation and the Dead Donor Rule : Opt-Out Organ Donation System

Opt-Out Organ Donation System

Organ donation is widely promoted as a powerful expression of altruism and as a gift of life. Consent-given gifts or donations establish the basic principle behind how the system of organ donation operates. However, in an opt-out organ donation system this principle has been suspended. In an opt-out system the wishes of the majority are unknown yet organs are nevertheless removed. Instead, the system is one of presumed ownership of the deceased body by the impersonal state. This interference by the state in personal life is a considerable rights issue.

In practical terms, there are a range of matters that further complicate an opt-out system.

First, the evidence seems to be equivocal about whether such a change would really increase the number of organs available.  Some countries with opt-out systems do worse than those with opt-in systems and some do better, suggesting that other factors may be more important.  Second, opt-out systems can come in soft and hard versions, depending upon whether the next of kin are consulted.  It is debateable whether more or less harm can come to next of kin one way or the other.  With a soft opt-out system, as in Spain, consulted grieving relatives are presented with a choice that many find very difficult.  But with a hard opt-out system relatives can find their exclusion very painful.  Third, an opt-out system requires a high level of public awareness to avoid circumstances in which people may object to organ donation but have never registered their desire to opt-out.  It is sometimes argued that an opt-in system cannot produce high donation rates because many people who want to donate simply don’t get around to registering.  But the same argument can apply in reverse to an opt-out system.  In an opt-out system people who actually do not want to donate may never get around to registering.  This would mean that people’s actual wishes would be over-ridden in an opt-out system.  Fourth, an opt-out system has the potential to further alienate those who already mistrust the authorities.  Feedback from the public about the UK’s opt-out plans (now aborted) reveals significant numbers of people who currently are registered to donate, but who would deliberately opt-out in protest about state interference if a presumed consent system were introduced.  Fifth, it is possible that the implementation of an opt-out system may contribute to a slippery slope where consent is presumed in other medical contexts.  For example, it could easily be argued that presumed consent should extend to the use in research of tissues and organs obtained at autopsy, despite the strongly negative public reaction to revelations of such practices at UK hospitals in recent years.  And sixth, while at this stage the opt-out system refers to organs from deceased persons, it could also apply to tissues, and if so does this have implications for consent regarding the use of foetal tissues that may be useful in treatment and which are obtained from miscarried or aborted foetuses?

In summary, arguments for an opt-out system are often based upon utilitarian analyses where the goal is to obtain a better outcome, whereas an opt-in system is more closely aligned with the ‘in principle’ view that consent in such matters must be obtained.