and addresses several common arguments against adopting presumed consent. Part III examines the possible impact of presumed consent on eye and
tissue donation, including procurement rates and other aspects of the field.
Part IV analyzes the positive effects presumed consent may have on donor
families and resulting secondary effects on views of donation.
II. PUBLIC HEALTH AND PRESUMED CONSENT
The current U.S. approach to donation is an opt-in system that relies on
individuals registering as donors.
10 Under this regime, for individuals
whose wishes are unknown at death, decision-making falls to next of kin.
Because actual consent is required, the default is non-consent.
consent reverses the process, requiring those individuals opposed to dona-
tion to register their objection, thus transforming the process by making do-
nation the default rule rather than the exception. Presumed consent faces
significant opposition on the basis of core bioethical principles.
ly, however, presumed consent is less dramatically different from the exist-
ing system than initial appearances might suggest, and it may yield signifi-
cant public health benefits.
The Uniform Anatomical Gift Act (UAGA), revised most recently in
2009 and adopted by the vast majority of states,
14 grants authority for persons to donate bodily tissue after death.
15 The UAGA and state implementing legislation16 strongly emphasize donor autonomy. Persons may register
consent to donate directly via a donor registry or may state their wishes in
10. The Uniform Anatomical Gift Act, which articulates an opt-in regime, has been
adapted in forty-six states and the District of Columbia, and has been proposed in Pennsylvania in 2014. Nat’l Conference of Comm’rs on Unif. State Laws, Anatomical Gift Act
11. UNIF. ANATOMICAL GIFT ACT § 9 (amended 2009), 8A U.L. A. 49 (Supp. 2013).
12. See § 8, 8A U.L. A. 49.
13. See Presidential Comm’n for the Study of Bioethical Issues, Informed Consent
Background (updated Sept. 6, 2013), http://www.bioethics.gov/sites/default/files/Informed
%20Consent%20Background%20090413.pdf (discussing the importance of informed consent as an ethical principle in biomedical and other human subject research).
14. Anatomical Gift Act (2006), supra note 10.
15. Some differences between organ, eye, and tissue donation (collectively “donation”)
are discussed infra Section III.
16. E.g., ARIZ. REV. STAT. ANN. §§ 36-841-36-864 (West, WestlawNext through legislation effective April 30, 2014 of the Second Regular Session of the Fifty-first Legislature);
CAL. HEALTH & SAFETY CODE §§ 7150-7151.40 (West, WestlawNext through Ch. 13 of
2014 Reg.Sess. and all propositions on the 6/3/2014 ballot.); FLA. STAT. ANN. §§ 765.510-
765.547 (West, WestlawNext through 2014 2nd Reg. Sess. of the 23rd Legislature through
March 31, 2014); MINN. STAT. ANN. §§ 525A.01-525A. 25 (West, WestlawNext through
2014 Regular Session through Chapter 166, except Chapters 149, 152, 157, 161, and 164);
TEX. HEALTH & SAFETY CODE ANN. §§ 692A.001-692A.023 (West, WestlawNext through
the end of the 2013 Third Called Session of the 83rd Legislature).