percent of Americans support donation.
4 This suggests that a large portion
of the population that has not registered yet may wish to be donors. When
unregistered individuals die, their families are responsible for donation decisions. Here the consent system matters a great deal. The difference between “opt-in” and “opt-out” approaches may dramatically impact decisions
made by family members suddenly thrust into decision-making roles during
the grieving process.
Considerable scholarly work has analyzed the potential impact of presumed consent on the availability of organs for transplant,
5 the prior limited
use of presumed consent in the U.S.,
6 and ongoing debates over the autonomy interests of decedents and their families.
7 However, at least two other
potential benefits of presumed consent have to date received less attention:
the impact on eye and tissue donation, and improvements for donor families. Both serve the same larger goal: a more open, more effective donation
system that improves the public’s health.
Presumed consent is a hard policy choice. It is a nudge, in the public
health vernacular, but decidedly a hard nudge—perhaps even a shove.
8 Public health interests often require hard policy decisions. Presumed consent is
not about eliminating personal choice, but rather committing to changing
prevailing cultural norms. The existing opt-in system marginalizes donation
as the exception, when public health needs indicate that it must instead be
the norm. The U.S. continues to suffer from a serious shortage of organ and
9 If presumed consent can improve procurement rates directly
or indirectly, or can improve the process for donor families, it is worthy of
This article explores the potential positive effects of a presumed consent
system. Part II discusses presumed consent from a public health perspective
cause family members have not been reached or have refused consent. See generally Leonard H. Bucklin, Woe Unto Those Who Request Consent: Ethical and Legal Considerations in
Rejecting a Deceased’s Anatomical Gift Because There is No Consent by the Survivors, 78
N. D. L. REV. 323 (2002).
4. U.S.DEP’THEALTH&HUMANSERVS., HEALTHRES.&SERVS.ADMIN.,2012
NATIONAL SURVEY OF ORGAN DONATION ATTITUDES AND BEHAVIORS
1 (2013), available at
5. E.g., Amber Rithalia et al., Impact of Presumed Consent for Organ Donation on Donation Rates: A Systematic Review, 338 BMJ 284, 285-87 (2009).
6. E.g., David Orentlicher, Presumed Consent to Organ Donation: Its Rise and Fall in
the United States, 61 RUTGERS L. REV. 295, 300-02 (2008).
7. E.g., Kyle Powys Whyte et al., Nudge, Nudge or Shove, Shove-The Right Way for
Nudges to Increase the Supply of Donated Cadaver Organs, 12 AM. J. BIOETHICS 32, 34
(2012); Joseph L. Verheijde et al., Recovery of transplantable organs after cardiac or circulatory death: Transforming the paradigm for the ethics of organ donation, 2 PHIL. ETHICS &
HUMAN. MED. 8 (2007); Bucklin, supra note 3, at 348.
8. See Whyte et al., supra note 7, at 35.
9. Donate Life Am., Understanding Donation, http://donatelife.net/understanding-donation/ (last visited May 22, 2014).