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Normative consent and presumed consent for organ donation: a critique
  1. Michael Potts1,
  2. Joseph L Verheijde2,3,
  3. Mohamed Y Rady4,5,
  4. David W Evans6
  1. 1Methodist University, Fayetteville, North Carolina, USA
  2. 2Departments of Biomedical Ethics, Physical Medicine, and Rehabilitation, Mayo Clinic, Phoenix, Arizona, USA
  3. 3Center for Biology and Society, School of Life Sciences, Arizona State University, Tempe, Arizona, USA
  4. 4Department of Critical Care Medicine, Mayo Clinic, Phoenix, Arizona, USA
  5. 5Center for Biology and Society, School of Life Sciences, Arizona State University, Tempe, Arizona, USA
  6. 6Queens College, Cambridge, UK
  1. Correspondence to Professor Michael Potts, Methodist University, 5400 Ramsey Street, Fayetteville, NC 28311-1498, USA; gratiaetnatura{at}yahoo.com

Abstract

Ben Saunders claims that actual consent is not necessary for organ donation due to ‘normative consent’, a concept he borrows from David Estlund. Combining normative consent with Peter Singer's ‘greater moral evil principle’, Saunders argues that it is immoral for an individual to refuse consent to donate his or her organs. If a presumed consent policy were thus adopted, it would be morally legitimate to remove organs from individuals whose wishes concerning donation are not known. This paper disputes Saunders' arguments. First, if death caused by the absence of organ transplant is the operational premise, then, there is nothing of comparable moral precedence under which a person is not obligated to donate. Saunders' use of Singer's principle produces a duty to donate in almost all circumstances. However, this premise is based on a flawed interpretation of cause and effect between organ availability and death. Second, given growing moral and scientific agreement that the organ donors in heart-beating and non-heart-beating procurement protocols are not dead when their organs are surgically removed, it is not at all clear that people have a duty to consent to their lives being taken for their organs. Third, Saunders' claim that there can be good reasons for refusing consent clashes with his claim that there is a moral obligation for everyone to donate their organs. Saunders' argument is more consistent with a conclusion of ‘mandatory consent’. Finally, it is argued that Saunders' policy, if put into place, would be totalitarian in scope and would therefore be inconsistent with the freedom required for a democratic society.

  • Donation/procurement of organs/tissues
  • ethics
  • legislation and jurisprudence
  • presumed consent
  • tissue and organ procurement
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Defenders of ‘presumed consent’ in organ donation have claimed that such consent protects freedom because there will be an ‘opt out’ for those individuals not willing to donate their organs.1–3 Critics have argued that ‘presumed consent’ de facto takes away the potential donor's autonomy because many people may not be aware of the ‘opt out’ clause and have their organs removed in opposition to their wishes.4 5 Ben Saunders6 has recently responded to this objection by claiming that actual consent is not necessary for organ donation. We offer arguments to refute this claim.

Saunders bases his argument on the notion of ‘normative consent’, an idea he borrows from David Estlund. Estlund claims there are situations in which people withhold consent ‘wrongly’ so that such non-consent is ‘defective’.7 He means ‘wrongly’ in the moral sense; sometimes the goods gained by consenting to X are such that withholding consent from X is morally wrong. Saunders claims that it is morally wrong to withhold consent for donating one's ‘cadaveric organs’. Therefore, even if the wishes of a potential organ donor are not known at the time he or she is a candidate to donate his or her organs, it is morally legitimate to take those organs. The idea is that if the patient had been previously opposed to organ donation and would not have given consent, such lack of consent would have been morally wrong, and there is no moral obligation to go along with an immoral lack of consent. ‘Implicit or explicit’ consent to donate one's organs ‘is not needed’.6 Saunders claims that his view ‘supports an opt-out system which provides protection for those who have genuine reasons to refuse donation and spares the worries as to what the deceased would actually have wanted’.6

Much of Saunders' argument that ‘it is wrong for (most) people to withhold their consent to postmortem organ donation’ hinges on Peter Singer's ‘greater moral evil principle’. Saunders' version of the principle in the context of organ procurement is ‘when we can prevent something bad, such as a death, without sacrificing anything of comparable moral importance, we ought to do so’.6 8 If Singer is correct, the application of Estlund's position to the issue of consent for organ donation seems to follow. Saunders recognises that it is critical to validate adequately his crucial premise that withholding consent to postmortem organ donation constitutes an immoral act. However, Saunders' version of Singer's position produces a duty to donate in almost all circumstances. If death caused by the absence of organ transplant is the operational premise, then, there is nothing of comparable moral precedence under which a person is not obligated to donate. Saunders' position is also based on a flawed interpretation of cause and effect between organ availability and death. For example, patients with end-stage kidney disease can survive for many years with either haemodialysis or peritoneal dialysis. The consequences of Saunders' position are that: (1) by definition, the objective of preventing death, that is, saving the lives of those with end-stage organ disease, outweighs the moral costs of the practice of organ procurement; and (2) a utilitarian approach in achieving the primary objective by maximising opportunities for organ transplantation is justified. These two premises effectively turn organ procurement practice into an ideology justifying certain practices and laws that may otherwise be unacceptable to members of society. The ideology leaves the assumptions for a particular practice largely untested and unchallenged and presents them as neutral. The concepts of the ideology become dominant and in control of the most private aspects of life in society.9

Saunders' premise ‘that it is wrong for (most) people to withhold their consent to postmortem organ donation’ is also challenged at an empirical level, that is to say, are donors truly post-mortem at the time of procurement? There is growing moral and scientific agreement that the organ donors in heart-beating and non-heart-beating procurement protocols are not dead when their organs are surgically removed.10–14 If the procurement of organs is not a postmortem but a premortem intervention, this current practice not only raises legal issues, but it effectively qualifies organ donation as a supererogatory act. The latter implies that the presumed duty to donate must be considered too onerous and, therefore, under the assumption of normative consent, it would be morally permissible to refuse organ donation. The scientific facts about death determination within the context of organ procurement nullify Saunders' argument that ‘it seems that the burden demanded is small’. Saunders' threshold of the duty to donate implies that even if donors are not dead, they are so close to death that their organs can nevertheless be taken because their very short remaining lives are not of comparable moral importance to the lives of those who need organs. This line of argument raises the question of how moral judgements are to be made on whose life can be sacrificed (donor) and whose life should be saved (recipient). Saunders' argument also ignores the potential for postmortem harm to surviving relatives and other close associates of those who have their organs removed. The existential absence in death and the physical mutilation can have profound psychosocial consequences on the grief and bereavement reactions of family members.15

In addition to the foregoing difficulties with his arguments, Saunders merely assumes that organ donation is a good such that refusal of consent constitutes a moral failing. but if such refusal were a moral failing, what reasons would the author consider ‘legitimate’ for refusal of consent? If organ donation is a prima facie moral obligation, then what higher principles suffice to override that duty? This points to a crucial flaw in Estlund's theory (and, by extension, Saunders' application of Estlund's ‘normative consent’ to organ donation). That flaw is the inability to say what separates the cases in which a refusal of consent seems binding from those in which it would appear not to be binding. For example, how can Saunders consistently support an ‘opt-out’ system if refusing donation of organs is ‘immoral’? To be consistent, Saunders would have to uphold the position that organs should always be taken from eligible donors whether they are in favour of or opposed to organ donation. The consistency of Saunders' position comes at the cost of supporting a conscription model. In the conscription model, every individual is mandated to donate organs.16 A societal obligation or duty to donate paves the way for a transition from presumed consent to conscription for organ donation.9 The state assumes full rights and ownership of an individual's body and organs. The conscription model achieves the ultimate goal of an almost 100% organ donation rate from medically eligible donors. A conscription policy treats human organs as property of the state and not as personal property. The state assumes that the rights of one's organs for donation are transferable resources from one individual to another. Then who decides what reasons are sufficient to override this duty to donate? The government? The transplant community?

Saunders' position is a recipe for totalitarianism. Totalitarianism is generally characterised by the coincidence of authoritarianism (ie, when ordinary citizens have no significant share in state decision-making) and ideology (ie, a pervasive scheme of values promulgated by institutional means to direct the most significant aspects of public and private life).17 Totalitarianism strives to regulate every aspect of public and private life whenever feasible. Appeals to ‘what is good for the people’ remind one of Rousseau's ‘general will’,18 which, in practice, has been used to justify states forcing their wills on individuals in the name of ‘the people’. Therefore, if the state enforces organ donation ‘for the public good’ despite the fact that there are questions about whether donors are dead, and without regard for individuals who have objections to organ donation, the state ignores the problems with organ transplantation to impose its own version of the good on the people. Such an expansion of government authority over individuals' bodies is incompatible with democratic society.

References

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Footnotes

  • Competing interests None.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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