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The ethics of opt out organs

Matters of the heart … the ethics of organs aren’t simple. Charlotte Astrid

Legend has is that the first human transplant took place in the 3rd century AD. The “lucky” recipient was said to be a sacristian called Justinian who received a donated leg from a recently demised Ethiopian soldier.

Whatever the facts of the matter regarding Cosmos and Damian’s third century surgical skills, there is no disputing the claim that organ transplantation has now become a highly effective and fairly routine surgical procedure. Sadly, however, the supply of organs has not kept up with demand.

In the UK, for example, around 1000 people die each year whilst waiting for an organ to become available and in the USA it has been estimated that 20 people die each and every day because there is an inadequate supply of organs.

This dire situation has lead policy makers and health care professionals to advocate a range of strategies to try and increase the number of potential donors.

The organ grind

A number of countries, including the Republic of Ireland and Germany, have plumped for an “opt in” policy. According to this kind of scheme people are only placed on an organ donation register if they take active steps to have their name added to the list. Other countries, including Singapore and Spain, have adopted a slightly more radical “opt out” policy. According to this kind of scheme every competent adult is placed on an organ donation register and anyone who does not want their organs to be donated after death must take active steps to have their name removed from the list.

A number of states in the USA - most notably Texas and California - have experimented with another kind of policy known as a “mandated choice” policy. This kind of policy tries to force every adult citizen to declare their views about organ donation. This is often achieved by requiring newly qualified drivers to declare their preferences as a condition of being given their driving licence.

Iran has taken a much more controversial step by allowing Iranian citizens to buy and sell organs on a (partially regulated) market, while Israel allows doctors to give priority to patients requiring organs who had previously declared their willingness to donate organs.

In the UK an “opt in” policy has been in place for many decades. However, the Welsh Assembly recently passed a new bill which means that Wales will switch to an opt-out system in 2015. This news has been greeted with much fanfare. The Welsh Secretary of the British Medical Association went so far as to claim that “this is the most important piece of legislation created in Wales since the laws of Hywel Dda”. This represents more than a little bit of hyperbole on the part of the British Medical Association’s Welsh Secretary. However, there is no doubt that many health care professionals throughout the UK regard this move as highly progressive and it is quite possible that Hywel Dda - a famous medieval ruler of Wales who codified a large tract of traditional Welsh law - would have been proud of this new Welsh initiative.

Tune in, turn on, opt out

But is the move to an “opt out” scheme morally defensible? If adopting such a scheme increased the number of donations we would have at least one good ethical reason to answer that question in the affirmative.

Unfortunately, the evidence is equivocal. Spain, for example, may have one of the highest organ transplant rates in the world, but this may be explained by higher rates of road traffic accidents and high levels of investment in organ donation retrieval teams rather than the existence of an “opt out” policy. On the other hand, there is growing evidence to suggest that switching from an “opt in” to an “opt out” policy does increase organ donation rates.

Hywel Dda says give up your kidneys. National Library of Wales

Defenders of “opt out” schemes can also argue that adopting this kind of system will maximise the probability that people’s wishes will be realised post-mortem – at least in countries where the majority are happy for their organs to be donated after they die but fail to register this fact whilst they are living.

Opponents of the opt out scheme will be quick to point out that adopting an “opt out” scheme will mean that a greater proportion of people who do not want to donate will end up having their organs used against their wishes. This is because the same factors which prevent willing donors from actively joining an organ donation register in an “opt in” system will also prevent unwilling donors from actively deleting themselves from the register in an “opt out” system.

This is probably true. However, unless we believe that there is something morally worse about removing organs from the bodies of people who are opposed to donation as opposed to failing to remove organs from the bodies of people who support donation then this argument will not provide us with sufficient reason to oppose an “opt out scheme”.

In response, proponents of an “opt in” system might claim that we should “weight” the choices of people who do not want to donate more heavily than the choices of people who wish to donate. However, it is not at all clear that this is either fair or reasonable. Moreover, if people who oppose donation have much stronger beliefs about organ removal than people who support donation it is reasonable to argue that they are more likely to make their wishes known. Thus, even if we do privilege the preferences of those who do not want to donate we might still have good reasons to adopt an “opt out” scheme.

New organs, old enemies

It might be said that in 2015 the English will start “free riding” on the generosity of the Welsh if the former retain an “opt in” system and the latter pursue their dream of an “opt out” scheme. This is because the Welsh will probably end up donating more organs (per capita) to the “organ pool” than their English counterparts, but the English and the Welsh will be treated equally when it comes to distributing organs.

Hywel Dda might not have been too unhappy with this arrangement for he was famed (and vilified) for having a very cosy relationship with his contemporary, Athelstan, the King of England. However, modern day Welsh people may be a little piqued by such an outcome.

In response, I would simply remind my Welsh brethren that people who confer a benefit on those who did not ask for the benefit cannot complain about subsequent “free riding”. It would also seem more fitting to respond to any residual injustice by taking pride in our bounteousness towards our “Hen Elyn” (Old Enemy) and by encouraging them to join us.

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