Don’t Make any Assumptions Presumed Consent is not an Ethical System for Organ Donation

With the rapid advance of scientific technologies, it seems like there is truly nothing medicine can't cure. Yet, 114,927 Americans are at risk of death from organ failure. This is not because of lagging medical advancement nor gaps in scientific knowledge. This staggering statistic is a result of the severe organ shortage in the United States. Due to the organ shortage, approximately 20 people die each day waiting for a vital organ transplant operation. The organ shortage crisis is a national and global phenomenon. The most frequently proposed solution to increase organ donation rates in the United States is to adopt a system of presumed consent for organ donation.

In the status-quo, America operates under a system of explicit consent. Under this system, individuals wishing to donate organs posthumously must explicitly document this consent by registering as an organ donor. Individuals have the opportunity to give consent for organ donation whenever registering for an official government document, such as a state ID. A presumed consent paradigm essentially inverts this process. All individuals are assumed to consent to organ donation unless they register an explicit refusal with the state. This opt-out system is the modus operandi in many European countries, and is utilized on the state level for corneal donations. Calls for adoption of a presumed consent model maintain that the system empirically increases donation rates. In a study that compared organ donation rates among 13 presumed consent countries and 9 explicit consent countries, it was concluded that there is a 25-30% higher rate of donation for presumed consent countries. Opt-out systems have been adopted in Austria, Belgium, the Czech Republic, Israel, Italy, Poland, Spain, and Sweden, among a number of other European nations, which all have higher organ donation rates compared to the U.S. and other opt-in nations.

The correlation between presumed consent and higher rates of organ donation would suggest a pragmatic approach; the United States ought to adopt a presumed consent system to rectify the organ shortage crisis. However, pragmatism should never be the sole concern guiding policy actions. Policy proposals are incomplete without thorough analyses of the ethical implications of the given policy.

In this paper, I will evaluate presumed consent under a number of ethical frameworks: Utilitarianism, Virtue Ethics, Deontology, and Bioethics (which incorporates professional values). Based on these analyses, I conclude that presumed consent is unethical under most moral frameworks. Ultimately, my rejection of presumed consent stems from a bioethics framework, which I argue is most appropriate given that it addresses the nuances of medicine, patient autonomy, and the healthcare system. Finally, I conclude that to ameliorate current issues with organ shortages, alternative approaches, such as a mandate choice present a promising and ethical way to increase donation levels.

Prior to evaluating the morality of presumed consent, it is necessary to consider who the stakeholders are in organ donation. Three principle agents are ethically implicated: the organ donor, the organ recipient, and medical professionals involved in the transplantation. The way that each group is specifically regarded somewhat depends on the applied ethical framework. For instance, Utilitarianism places the heaviest emphasis on the effects of donation on the recipient. Since recipients are the only individuals concretely impacted by the act of donation, the net effect on their utility is evaluated. Dissimilarly, Virtue Ethics considers the donor to be the most relevant moral agent. Virtue Ethics seeks to evaluate whether the action of donation is a virtuous one, and whether this virtue is best encouraged by an opt-in or opt-out system. Deontology treats the medical professional as the relevant agent, primarily in relation to the deceased. Finally, bioethics attempts to balance the simultaneous ethical obligations of the physician to the deceased and to the recipient.

I will first start the ethical examination of presumed consent by analyzing the system under a Utilitarian lens. Utilitarianism is a type of Consequentialism initially developed by Jeremy Bentham and John Stuart Mills. Utilitarianism defines moral actions as those that maximize well-being or pleasure. There are generally two formulations of Utilitarianism““Act Utilitarianism, and Rule Utilitarianism. Both provide a normative calculus, but are applied differently. Act Utilitarianism considers particular actions and determines whether the act in question maximizes utility in that particular scenario. In contrast, Rule Utilitarianism prescribes sets of behaviors that, when followed, culminate in an optimific outcome. Accordingly, Rule Utilitarianism is most consistent with policy making““which mandates uniform action““ and therefore can be best applied to evaluate the system of presumed consent.

Rule Utilitarianism unequivocally supports a system of opt-out donation. The first factor to consider is how the policy affects overall donation rates. To predict the impact of an opt-out policy, one can refer to the consequences of previous implementations. Studies evaluating these implementations point to a 25-30% increase in organ donation rates. This evidence-based evaluation indicates that presumed consent systems are optimific as they maximize the number of lives that can be saved by reducing the organ shortage. Furthermore, under Utilitarianism, there is no loss to overall utility by adopting presumed consent. Since the deceased cannot experience the consequences of actions, anything done to the deceased would be morally neutral under Utilitarianism. Thus, an initial analysis of presumed consent organ donation under Utilitarianism would indicate that it is ethically permissible.

An interesting and significant objection to Presumed Consent organ donation derives from Mill's conception of individual autonomy.

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