Organ donation has been a hot political topic in the UK of late. Wales introduced a new rule last December that presumed that people gave permission to donate organs in the event of their death (barring a family veto), bringing it into line with the likes of Austria and Spain. The Scottish and Northern Irish parliaments have both debated private-members bills with similar proposals in recent weeks. However, the Scottish bill was voted down while the Northern Irish one was killed at the committee stage.
Both will stick with the existing English rule that requires explicit donor consent for the time being, though the Scottish government is promising legislation to introduce presumed consent if it wins the May election, and there is talk of another Northern Irish proposal too. We must hope they don’t. Both countries should be very wary about any such scheme.
Presumed consent is a dubious notion. If consent is not crucial for the justification of using the organs of dead people for transplants, we needn’t talk about opting in or out of donations at all. We could simply remove such organs and use them for the benefit of living people. If we were investigating a murder, say, we would do to the dead body whatever we thought useful no matter what the wishes of the deceased person or their relatives.
But if consent is crucial and the removal of the organs cannot be justified without it, we should treat consent with appropriate seriousness. It must be given unambiguously, unequivocally, consciously and positively. Contrary to the Welsh position, our relatives cannot consent on our behalf – nor our friends for that matter. Their beliefs about our wishes, even if true, are irrelevant. Telling a friend that you want to donate your organs is not the same as giving your consent to their donation just as, say, telling a friend that you want to have sex with someone is not the same as giving your consent.
Imagine if there were another referendum on Scottish independence, and the Scottish government proposed an opt-out system of presumed consent. Would anyone against independence seriously accept that an abstention should count the same as a No vote? Assuming not, taking a different view over organ donation is surely to argue that you only favour opt-out systems of presumed consent if you agree with the expected outcome.
It’s all relatives
The reason why presumed consent is popular is because there are not enough organs available for transplants (though the UK’s stats are still 13th best in the world). A major reason for the organ scarcity is that doctors choose to take into account the wishes of the relatives of dead people despite the consent they expressed while they were alive. This is why we are subject to ridiculous and impertinent publicity campaigns to discuss with our relatives our intentions concerning the use of our bodies after our deaths.
Imagine a situation where a deceased woman has consented to the use of her organs and tissues. Suppose several people could live if those wishes were fulfilled. Suppose many relatives of these people would be devastated were their loved ones to die. Suppose one of the woman’s relatives expresses his strong revulsion against the use of her body for medical purposes.
There are no obvious grounds in ethics, common sense or even the law for allowing this particular relative to effectively exercise a veto. Why, for instance, should his feelings prevail over the feelings of the relatives of the potential recipients of the organs? Why should they prevail over the feelings of the potential recipients themselves? And more importantly, why should they prevail over the feelings of the deceased woman when she was still alive? The grieving relatives of a deceased patient should not be treated as proxies for the patient, no matter how much compassion they might arouse from the medical staff on the scene.
It is claimed that if there were a system of presumed consent, attitudes towards the posthumous donation of organs would change and relatives would be less reluctant to approve donations. This is not only speculative. It is irrelevant. The views of the surviving relatives can be and should be ignored.
Furthermore, it is neither the business of politicians nor the function of criminal law to change our attitudes. They are there to provide appropriate rules, which carry the threat of legal sanctions, to regulate our actions. Politicians should not tinker with such rules merely because they do not like their outcomes. If the rules and procedures concerning posthumous organ donation were reasonable, just and fair, we should be prepared to maintain them however many or however few organ transplants they facilitated.