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Thesis Deemed consent for organ donation respects the donor’s autonomy, not only the waiting list

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· 8 replies
BioethicsAnalyticIslamicJewishJames F. ChildressTom L. Beauchamp#autonomy#deemed-consent#opt-out#organ-donation
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Its coordinates: 3.3.1 Bioethics and Medical Ethics

Where it stands

Bioethics is one of the most contested parts of philosophy, and its questions can be put shortly: who counts, who decides, and who gets it? Organ donation touches all three, so we are putting one thesis up for debate.

Thesis: A system of deemed consent (opt-out), done properly, respects the autonomy of the person who dies better than an opt-in system does.

The background. Wales moved to deemed consent in December 2015, England in May 2020 and Scotland in March 2021. Under these laws an adult who has not recorded a decision is treated as having agreed to donate, with exceptions, and the family is still consulted. Spain has had a presumed-consent law since 1979.

For: in surveys, far more people say they would donate than ever register. If most people want to donate and never get round to saying so, an opt-in default overrides their wishes more often than an opt-out default does. A default always decides for the silent. The only question is which way.

Against: consent is an act, not a guess. Silence is not agreement, and a system that treats it as agreement has replaced consent with a statistical prediction about you.

Please mark your side. We are especially interested in how traditions with views about the body after death have approached this.

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8 replies

For the thesis 4

  1. Ethan Mercer

    For Fellow

    For. Tsion's test cuts both ways. Under opt-in, the person who wanted to donate but never filled in the form didn't "agree" to not donating either, yet their organs are buried with them. Every system decides for people who said nothing. Deemed consent at least decides in the direction most of them would have chosen.

  2. Javier Ferrandis

    For Fellow

    For. Spain settles this. Since its presumed-consent law it has led the world in donation rates for decades. The default is the policy.

  4. Eliana Halpern

    For Fellow

    For, with a caveat. In Jewish law saving a life, pikuach nefesh, overrides almost every other commandment. Some authorities draw the conclusion that donation, where permitted, is close to an obligation, and if it is a duty, a default in its favour is not an insult to anyone's freedom.

    The caveat is that the halakhic authorities are divided about when death occurs, especially on brain-stem death. So many observant Jews will want to register a specific decision either way, and any system has to make that easy.

Against the thesis 4

  1. Tsion Bekele

    Against Fellow

    Against. In informed consent we ask two things: did the person understand, and did the person agree? Deemed consent answers neither. It may still be a good policy. But then call it a policy about defaults and defend it on those grounds, instead of borrowing the moral prestige of the word "consent".

  2. Alistair Gow

    Against Fellow

    Careful, Javier, Spain is the usual example and it points the other way. The law dates from 1979, but donation rates stayed unremarkable for about a decade. The rise came after 1989, when the National Transplant Organisation (ONT) was set up and hospitals were given trained transplant coordinators who identify possible donors and talk with families. Rafael Matesanz, the ONT's founding director, has said repeatedly that the law is not the explanation, and in practice Spanish families are always asked.

    So Spain is good evidence for organisation and for how families are approached. It is weak evidence for defaults. I'm against the thesis as worded, though I'd support deemed consent as one part of a Spanish-style system.

  3. Omar Ragab

    Against Fellow

    Against, though not for the reasons people usually expect from a Muslim.

    Many Muslims assume Islam forbids donation. It does not, on the view of a large number of scholars. The Fiqh Academy of the Organisation of Islamic Cooperation accepted brain-stem death in 1986, though not every jurist agrees, and many fatwas since have permitted donation on the principle that saving a life is among the highest goods.

    But look at how those scholars usually permit it. The body is held in trust, an amāna, not owned outright, and donation is described as a gift, an act of charity, ṣadaqa. A gift needs a giver's intention. Its whole value lies in the giving. A gift presumed on your behalf is a strange thing in that vocabulary.

    In practice families often refuse when they are unsure what the deceased wanted, and deemed consent does not change that. What changes it is people saying, while alive, "I give this." So my vote: put the effort into asking, not presuming.

  4. Tsion Bekele

    Against Fellow

    Eliana's point sharpens mine. If donation is a duty, argue for a duty openly. Deemed consent tries to have it both ways.