Chapter 16 : Allocation of Resources

Author:  Carl Cohen

Title:  The Case for Presumed Consent to Transplant Human Organs After Death

Publication information:  School of Medicine, University of Michigan, Ann Arbor, Michigan.  Transplantation Proceedings, Vol. 24, no. 5 (October), 1992: pp. 2168-2172.

 Summary by Damali Joseph QCC (2002)

Everyone has power and the say so over their own bodies even when they die.  Each of us is the possessor, master, of our own body, and therefore we have wide moral authority to give or withhold permission for the use of our body after death.  When alive most of us don’t make the choice to donate our organs or not and it is left for our families to decide.  But can they really decide for us?  No, but we are all autonomous individuals and therefore only we can execute our autonomy.

Presumed Consent

The current American practice today believes that respecting their autonomy by their organs not being donated for transplantation protects decedents best.  So, now the decision is left up to the decedent prior to death or the family of the decedent following the death.  These rules, formal, and informal should be changed.  In order to protect the decedents autonomy the best thing is to suppose that they did will or they would have willed their organs to help another to live.  Under the renewed system, if an organ is needed for transplantation, they can proceed with doing so, unless prior refusal was given.  This is what presumed consent is. 

Others presented this system long before this such as Dukenminier and Sanders in 1968.  This system is not only expedient or beneficial it is also fair because it maximizes benefits for all involved.

Needs and Goods

In society we are lacking, there are things we are in need of.  The great need is for organ transplantation.  As the years go on an increase in donations have seem to be very slim.  This is the reason why we cannot only dwell on family decisions preceding the death of their loved ones.  We are in need of this changed system to raise the threshold of the number of organ donations given for transplantation to help in saving lives. 

The need for these organs will not increase alone on this current configuration of consent.  Because the request for organs are made while the person is dieing or after the person has died is denied due to emotions and circumstances.  At this time the emotions and thoughts are dwelled on the decedent not on the organs of their dieing mother or dieing father.  Even though the system of spoken consent still fails, this won’t change a thing, there will still be a great need for organs and the need will increase. 

In solution, if other options were found within the limitations of the law and the moral limitations, then there would be without a doubt an increase in organs donated for transplantation.  Even though the system of presumed consent would increase the organs donated for transplantation there would still be a need for more organs.  For the needs won’t be fully met.  The system for presumed consent is good especially because the disadvantages to the system are less to none.

What Is Right to Presume?

How can we most fully recognize most persons’ autonomous wishes concerning the disposition of the organs of their own bodies after death?  Many people don’t confront the matter while they’re alive and healthy, while on their death beds it’s difficult to ask their preference on this subject, and when they’re dead no one can give a preference; when dead are all silent.  Common presumptions are made about how the decedent would wish their organs to be of use.  A system must be established and implemented for those autonomous decedents and they must not conform to the general presumption.  This causes a problem.  When the general presumption is in use, it is presumed that the person would not want to donate his organs and then in certain case a request is made to the family for the donation of these organs for transplantation. 

The presumption has consequences that has unfortunate results like when a distressed family member is asked the request for donation, which is often turned down, which leads to a loss of life that otherwise may have been saved.  This system is also wrong because the bulk of people in the United States would like to donate their organs but the present system is inconsistent with that.  The present system thinks no one wishes to donate their organs for transplantation.  The present system also doesn’t protect the autonomy of the decedents even though that’s the purpose of the system. 

The support of organ donation has been a positive one now, and even in earlier times.  In early 1968 and in 1975 the support for organ transplants in the United States was very high.  In urbane, classy regions like Los Angeles County and Houston support for organ donation was more than ¾ of a whole and in Liverpool in 1979, 93% of people supported the same cause.  Some people were afraid and uneasy about organ transplantation because they could just not picture themselves dieing.  Even though being afraid and uneasy, when asked, Americans still wanted to participate in donating organs when they die to save a life of another.  But all too often spouses and children of the deceased are asked this question at the worst possible time for them, which leads to negative response.  Because of the circumstances not many families at the time in not in the right state of mind and their answer sometimes do not show the wishes of the decedent.  We ask the wrong persons, at the worst possible times, what they should never have been asked at all.

The ethical way of assuming the wishes of the obligation to the decedent is the number One thing.  We have to make a presumption based on what we feel would be a strong reason and still respect their autonomy, in doing what we thought their wishes would be, using their organs to save another life. 

There should be a change in the general consent of obtaining organs for transplantation to help save lives because it’s not only the right thing to do but it also shows respect for autonomy of the deceased.  The modern presumption of consent for beneficent transplantation of organs is the greatest thing in showing respect for the autonomy of the population that strongly approves the donation of cadaveric organs. 

Other Good Consequences of Presumed Consent

The presumption of these donations of organs, not only help to improve and extend the lives of the sick people who would have otherwise been dead, but also to give grieving families relief from making such a decision in their time of grief.  When being forced to make a decision in this grieve full time leaves families defending for their loved ones instead of thinking what they would have wished.

Not only would this system serve the bereaved but also doctors and nurses from answering the questions of families who are in the grieving stage.  This would allow families to grieve and not have to be bothered with this at all; this just leads to more frustration and pain.

Protecting Those Who Object

Even though the majority of people wish to donate organs, if asked to, there be some people who absolutely do not want to remove their organs under no circumstances.  In order to respect one’s autonomy, everyone must be given the chance to share his or her wishes.  Everyone with or without a reason, have the right to refuse or accept within this system without giving any reason why.

Presumed consent is automatic and those who express the wish not to participate before death will be very few, but should still be respected.  People who choose not to participate will have their wishes placed in a computerized registry that will really work to protect their autonomy.  In short: any person’s exercise of the option to demur, for any reason whatever, must settle the matter for that person’s remains.  No one else need ever be asked anything.

Transitional Matters

There must be no surprise or disadvantage when there is a trans formation from the present system of organ donation to a system of presumed consent.  The population of society should be aware of the present system and the revised system, which will now be used.  Some may not agree and some may.  For all the non-believers who do not agree shall be given all opportunity to share their wishes not to participate and for those who are believers, the presumption will be the wish to do whatever to save the life of another.

Autonomy and the Family

Not everyone knows of the system changes.  Therefore, until it is understood that the system of presumed consent is in effect, families can make objections.  The objection to use the system of presumed consent will cause more of a burden to the decedents autonomous will than to preserve and defend it.  This will cause a reduction in organ supply at the beginning but allowing it will smooth the rocky road into the new system of presumed consent.  If one wishes to donate their organs if it is shown that they are needed, before death no one can interfere with their decision, not even the family.  Many have criticized that presumed consent is thoughtless to the moral demands of the bereaved families but this is a misconception.  The ethical right for consent to donate organs is of the person who the body belongs to.  Even though families are presumed as proxies when a close family member has died, the family cannot interfere with the choice and the wishes of the deceased individual. 

The system for donating organs policy is to establish what the wishes of the person might be.  While alive the wishes for our bodies are respected and should continue to be respected even after death.  Under the system of presumed consent, autonomy is the main concern and should recognize at all times but even more now than ever before.

Objection and Replies

Three different kinds of objections have been registered to the system of presumed consent, 1) mechanical, 2) some sociologic, and 3) some moral.  All 3 of these objections fail. 

1)      Mechanical or Technical objections- those who didn’t want to participate in donating would have a complicating time expressing so, some might fail to get ready access to it, and maintaining uniformity across state boundaries will present a problem.  The system of presumed consent can work and sometimes may have breakdowns, problems, such as some organs being used when they should never have been used when they weren’t, they were better off being used.

2)      “Sociologic” objections- the fears the system may promote.  The fears:

A.     Organ farms or other macabre fantasies will be encouraged by presumed consent

B.     Spirit of voluntarism will be undermined

C.     Distrust of doctors will increase with a sick person due to feeling that their out to get only the person’s organs under presumed consent.

Hospitals will be thought of as a place of physical defacement and rough treatment instead of a place of help.  May writes:

“While the procedure of routine salvaging may, in the short run, furnish more organs for transplants, in the long run, its systemic effect on the institutions of medical care would seem to be depressing and corrosive of that trust upon which acts of healing depend.”(Munson 777)

There is no good pragmatic foundation for these objections and speculations.  The feeling of revulsion and antipathy against medical professionals are extravagant and increased by your thoughts into what is called anticipatory speculative condemnation.

Those who have negative feelings towards the removal of organs from cadavers will most definitely not agree with this sort of organ transplantation and will in turn hate the idea of presumed consent.  Under any system, there can be misconduct of dead bodies.  Watching a person dieing is wrong especially when they could have been saved, but wasn’t. 

3)      Account must be taken of two genuinely moral objections:

A.     Harvesting human organs is definitely wrong when based on moral convictions.  For example some Orthodox Jews respect the Divine Command and have the belief that their bodies afterlife can be resurrected.  In their case we would have to respect their wishes but that still wouldn’t change the presumed consent system.  The request of not having any parts of their body donated must be made before they die otherwise this would be a one of those times when presumed consent will be used.  Because of the belief of resurrection after death the Orthodox Jews would find it totally unacceptable to remove any parts of the body. 

B.     Objections between the difference of consenting and not objecting.  Some critics think that if we only rely on absence of objection that there is no realization of the person’s autonomy like expressing consent.  While express consent is clumsy but good, presumption of consent could not be reliably sound.

Wrong.  If someone really objects to organ donation, especially donating their organs, and never has this recorded to the appropriate people the system of express consent would be better for that person than the presumed consent system because the express consent would protect their autonomy better.  No matter which way you look at it presumed consent is just the reverse of express consent but does the same thing.  Presumed consent allows the use of one’s organs and therefore protects the autonomy of the person.  The differences really lie in the negative and the positive acts meaning negative refraining from refusing or refraining from consenting and positive expressly consenting or expressly refusing consent.  Even though this is an operational difference there are moral consequences.  The presumed consent system is believed to protect a minority and obliges the majority to register their views expressly and it is then unfair.

Everyone must make choices that will respect their autonomy and whether we get to do it or not there will still be a presumption.  Would people make the same decisions if they had the chance to before their deaths?  Maybe so.  The presumption of the decision that a donation would have been made rather than not have been made would most likely realize the autonomy of the decedent.             

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