Does Organ Donation Respect People's Autonomy?

Leonardo Da Vinci's Vitruvian Man

In this article I will argue that the presumed consent or opt-out system of organ donation does respect people’s autonomy in principle; but that for the system to respect people’s autonomy in practice the state must be held responsible to following a higher standard in the procedure, or else it runs the risk of manipulating or exploiting people’s autonomy in the interest of procuring organs. I will do this by first explaining the opt-out system and why it respects people’s autonomy, before raising the possible issues that come with an opt-out system in practice. Then, I will conclude that the system is, in principle, compatible with people’s autonomy, and that the burden is on the state to actually implement it in a way that upholds that principle.

To begin, the presumed consent, or opt-out system of organ donation is a registration system by which all citizens of a state will become organ donors at the time of their death by default. If a person does not wish to become an organ donor when they die, they have the opportunity to explicitly refuse their consent to do so by notifying the state. If they do not notify the state of their decision, the state presumes them to consent to the removal of their organs at the time of their death. This system is intended as a solution to the shortage of organs available for those in need of an organ transplant, and there is empirical evidence to show that it does satisfy this objective although we will not go into details here. The point is that it is a system that has results, and therefore we have reason to implement it, or to continue to implement it. However, there is an ethical issue, namely, that of consent. It has been argued that in this system, the core value of autonomy is disrespected because the state fails to secure actual consent from its citizens. This is because the default position is that of non-action: People are considered to have consented to becoming an organ donor when they have not told the state that they do not wish to be organ donors.

Thus, there is a non-negligible risk of people having their organs harvested at the time of their death even if they were opposed to that, and this violates their bodily autonomy, and autonomy of choice. This is in stark contrast with the standard of valid informed consent used in the medical community, which, briefly, holds that a person has consented to a medical procedure i.e. invasive surgery, blood transfusion etc. only if they have the capacity to do so. They have been given adequate, relevant and sufficient information, and they have not given the consent under any influence from a doctor, family member or otherwise. In other words, a person’s consent to X is only valid if they know that they are consenting to X. In the case of the presumed consent system, the consent is exactly that — presumed. It is not clear whether the person knows that they are consenting to X, or that they know that certain actions are constitutive of the consent of X. So, presumed consent is not actual consent, thus it violates autonomy. If this is true, then the opt-out system is seriously morally problematic. I will now give an account of a defence of the opt-out system that shows that it is not true that it violates people’s autonomy.

NHS UK (2019). Organ donation advertisement. NHS South Central Ambulance Service. Available at: https://www.scas.nhs.uk/organ-donation-week-2019/.