Monday 14 January 2008

the dangers of changing the law on organ donation

Mr Gordon Brown, the UK prime minister, wants to change the current system of organ donation so that people's consent is assumed unless they actively opt out. While most people probably regard organ donation as a valuable life-saving practice, presuming consent touches on a number of real problems.

Many arguments for an opt-out system are utilitarian, where the goal is just to obtain a better outcome i.e. a greater number of organs donated. The worst situation would be where people's deaths could actually be hastened because their organs were needed for someone else. There is already pressure for this. The International Forum on Transplant Ethics proposed that lethal injections be given to people who are long-term unconscious, in so-called persistent, or permanent, vegetative state, and for whom life has been deemed unworthy of living. It is argued that such injections could produce better-quality organs than if the person died naturally. While the donor would be dead when the organs were taken, the death would nevertheless have been caused to enable their removal. Even if the patient had given consent, medics would be involved in hastening his or her demise.

Donation of anything is customarily based on consent. They are, after all, my organs. However, in an opt-out system, where most people's wishes are unknown, consent is absent and you can't really speak of organ donation any more.

An opt-out system also represents a high level of interference by the state in personal life. The dead person's body effectively becomes government property.

The evidence even seems equivocal about whether such a change would increase the number of organs available. Some countries with opt-out systems do worse than the UK but some do better, suggesting that other factors may be more important.

Opt-out systems come in soft and hard versions, depending upon whether next of kin are consulted. With a soft opt-out system, as in Spain, grieving relatives are presented with a choice that many find very difficult. With a hard opt-out system, relatives can find their exclusion from the decision process very painful.

An opt-out system also requires high public awareness so that everyone who objects to organ donation actually does opt out. It's argued that opting in cannot produce high donation rates because many people who want to donate simply don’t register but, with an opt-out system, many people's genuine wishes would be over-ridden.

An opt-out system could further alienate those who already distrust the authorities. Indeed, some people who are registered to donate say they would opt out in protest at state interference if consent were presumed.

Consent might also come to be presumed in other medical contexts. It could be argued that presumed consent should extend to the use in research of tissues and organs obtained at autopsies, despite the strongly negative public reaction to revelations of such practices at UK hospitals in recent years.

While opt-out systems tend to refer to organs from deceased persons, they could also be made to apply to tissues. If they did, there could be implications for consent regarding the use of tissue from miscarried or aborted foetuses.

By contrast with opting out, opt-in systems are aligned with the ethical view that people should actively give their consent.

Melanie Phillips in the Daily Mail today raises another extremely serious concern. She says: "There is, however, a yet more fundamental objection to the opt out proposal. This is the serious doubt whether people whose organs are harvested are dead." This is a matter to which I shall return.