Organ donation: Opt-out or opt-in?

Many people need critical organs like hearts and lungs, yet a worldwide shortage of available organs leaves many to die while awaiting a transplant. The United States, for example, has about 117,000 people in need of lifesaving organs and less than 6,000 donors.

Currently, states’ laws require individuals to ‘opt-in’ if they wish to be organ donors. This means that your critical organs cannot be harvested unless 1) you have explicitly communicated that you wish to be an organ donor and 2) you are dead. Many people opt-in by checking a box on their driver’s license or renewal form, for example.

It’s supposed to be easy. But no matter how easy it is to check a box on a license, there are still not enough organ donors.

The alternative is the ‘opt-out’ model, which would require people to explicitly refuse to donate their organs. If people do not opt-out, hospitals would be able to use their organs. Proposals for this model appear sporadically and come in various shapes and sizes. For example, some opt-out models include a clause that allows a person’s family member to veto the organ ‘donation’ on that person’s behalf, even if the person never opted out.

To make opt-out donation models ethically palatable, proponents often say that individuals would have consented to organ donation if they had been asked. This is the notion of ‘presumed consent.’ Sometimes presumed consent makes sense. For example, if a person is left unresponsive after being struck by a car, we can presume they would consent to treatment even if they cannot communicate this consent. This is a safe assumption because a vast majority of people would consent to treatment in this situation.

However, organ donation is different. One recent comprehensive study reports that around 1/3 of people would not wish to donate their organs. With so many refusals, we cannot presume that enough individuals would have consented to donate their organs. Thus, we would be taking organs from people who did not want to donate.

Another problem with the opt-out model is that it may offer false promise. Studies have shown that past attempts at implementing similar opt-out models in England and France resulted in fewer available life-saving organs. It is thought that the public was ill-prepared for the transition to the opt-out model, leading to many citizens opting out based on distrust of the policy. France is trying again, however. In 2016, the country passed new legislation  and an opt-out model took effect on January 1.

Others have argued that there is too much focus on consent in organ transplantation. One option is to go forward with an opt-out policy while admitting that we are taking organs without consent. Instead of relying on consent, we can say that we are using organs to serve an important public good – namely, saving the lives of many people.

This may sound distasteful – even unethical – at first blush. However, a parallel practice is already commonly accepted. In criminal cases or in cases of public safety, the state may perform an autopsy without prior consent. If we can ethically and legally dissect the body of a deceased individual without their permission, why should we refrain from taking organs to save multiple lives?

There are, of course, serious dangers in policies that allow us to override individual’s preferences for the common good. However, given the shortage of life-saving organs, it is helpful to question our legal, ethical, and philosophical commitments regarding organ donation and procurement.

Until we figure all of this out, however, maybe we should just stick to checking boxes on licenses.

-By Peter Koch, Ph.D., clinical ethics fellow in the Center for Medical Ethics and Health Policy at Baylor College of Medicine