The National Assembly of Wales has legislated to introduce an “opt-out” system for human organ and tissue transplantation, which will come into effect in 2015. In doing so, Wales joins a host of other countries (now over 24) that have taken the leap, including Spain, Austria, Belgium and Singapore.
The changes mean adults will be deemed to consent to donating their organs and tissue in the event of their death as the default position, unless they make it known that they do not want this to happen.
But is “opt-out” a wise move? And is it one that Australia should consider following?
By way of context, Australia currently has very low organ donation rates by world standards (13.8 donors per million population according to 2010 data), trailing at least 22 other countries. Australia’s rate is well below the donation rates of world-leader Spain (at 32 donors per million population).
Demand vastly outstrips supply, and around 1,600 Australians are currently waiting for an organ donation.
The importance of defaults
In their influential book Nudge academics Richard H. Thaler and Cass R. Sunstein argue for what they call “libertarian paternalism”. The notion reflects both a desire to steer people toward choices that are for the better, while leaving them free to choose.
This sounds contradictory. But organ donation provides an excellent example.
Defaults make a big difference. A study by Eric J. Johnson and Daniel G. Goldstein involved asking different people in an online survey whether they would be willing to be donors in several different hypothetical scenarios.
In the first scenario, participants were told that the default was not to be an organ donor (but they had the option to consent-in). In the second, participants were told that the default was to be an organ donor (but had the option to opt-out).
Not surprisingly, this made a big difference. When participants had to consent-in, only 42% chose to do so. If they had to opt-out, 82% agreed to donate.
Is this also the case in practice? The best empirical evidence currently available suggests it is.
In 2008, the UK government commissioned an independent review of the available research. There were five studies that compared donation rates before and after the introduction of an opt-out system in particular countries; eight compared donation rates between consent-in and opt-out system countries.
The results? All five of the before-and-after studies reported an increase in donation rates after the introduction of “opt-out”. And in the four between-country comparison studies judged the most methodologically rigorous, there were associated increases in donation of “25-30%, 21-26%, 2.7 more donors per million population, and 6.14 more donors per million population.”
Of course, correlation does not equal causation, and other factors may have played a role. Nonetheless, the review concluded that:
The available evidence suggests that presumed consent [opt-out] is associated with increased organ donation rates, even when other factors are accounted for.
Saving lives is, in and of itself, a good thing. Policies that result in more deaths than the available alternatives need to be justified. There could be good moral reasons to reject opt-out, but we’d better be clear about what they are.
One reason might be that some people feel strongly opposed to their organs being used, for religious or other reasons. This is resolved by making opting out easy (allowing people to register their objection online, by post or by phone, for instance).
There should be a national campaign to raise awareness of any changes, and there should be a waiting period before they come into effect.
There may still be people who do not want their organs to be used, but who don’t get around to opting out. Their preference may be thwarted when they die. That is unfortunate, but public policy is often about choosing between least-bad options, and preferences cut both ways.
Given that 80% of Australians indicate that, at least in principle, they would like to donate, moving to an opt-out system would likely lead to more people getting what they want.
A second objection is that the opt-out system will undermine the altruism we usually associate with organ donation. In the words of some Welsh church leaders, organ donation ought to be “a gift, an act of love and generosity.”
This is not really a good reason for letting more people die than is necessary.
The reason we regard charitable intentions as positive is because they tend to bring about outcomes we consider valuable.
If someone spends their life in otherwise wholesome ways, looking after the sick and the poor, and it turns out that they only do this due to a selfish desire to be thought positively of by others, we may think less of their character, but we should not think any less of their actions.
The fact that a deceased donor was not positively committed to saving a life, and instead cared very little about what happened to her body, makes no difference to the value of life (or lives) saved by using her organs.
Bad policy costs lives
Besides moving to an opt-out system, we should also encourage people to reflect on what they want to happen to their bodies after they die. They might choose to opt-out, or they may decide they definitely want to donate.
Currently, even if someone has come to this latter view, their family may veto their decision after they’ve died. There’s no legal basis for this but health practitioners respect families' wishes in practice.
But this must change if we are serious about respecting people’s autonomy. We allow individuals to make advance care directives, or to bequest their property however they see fit and families can’t over-rule their wishes in either case. A deceased’s wish to donate her organs should not be able to be over-ruled either.
Our organs are of no use to us when we’re dead. Donating them can save or greatly improve the lives of up to ten other people. If the evidence suggests (as it seems to) that opt-out organ donation would save lives, we should adopt such a system, or at least consider trialling it in some jurisdictions.
It is a great tragedy that we currently allow so many healthy organs to rot, or be incinerated, when they could be used to save the lives of people who so desperately need them.
The supposed moral objections to opt-out are unconvincing – and as the philosopher Janet Radcliffe-Richards writes:
If you die through mistakes in moral reasoning, you are as dead as if you die through mistakes in medicine.