various legal documents, such as advanced directives or wills.
17 In most jurisdictions, donors may register at their local motor vehicle division and
have a designation placed on their driver’s licenses.
18 If a decedent has neither registered nor explicitly objected to donation, consent decisions fall to
next of kin.
No monetary or other incentives are permitted in exchange for consent,
so consent is presently sought on the basis of altruism, commonly invoked
as seeking the “gift of life.”
21 This mild encouragement sometimes works
surprisingly well. In some states, over eighty percent of adults are registered
22 though the national average designating donor status is just forty-two percent.
23 In 2012, over forty percent of actual donors were registered,
the rest becoming donors based on next of kin consent.
24 The consent rate
from family members is generally less than sixty percent under the best of
circumstances, and far lower when the process does not follow a collaborative process that brings together healthcare staff and procurement organizations.
The underlying assumption of the opt-in consent approach is that those
who do not consent during life or express such wishes to family members
do not wish to be donors.
26 While there may be no formal presumption of
objection under an opt-in system, there is an implicit barrier created in that
17. U.S. Dep’t Health & Human Servs., Health Res. & Servs. Admin., Becoming a Donor, http://organdonor.gov/becomingdonor/index.html (last visited May 22, 2014).
19. UNIF. ANATOMICAL GIFT ACT § 9 (amended 2009), 8A U.L. A. 49 (Supp. 2013) (
requiring the authority to consent on behalf of a decedent to follow an explicit order of priority
with ten categories of persons. In order of priority: 1) legal agent of the decedent; 2) spouse;
3) adult children; 4) parents; 5) adult siblings; 6) adult grandchildren; 7) grandparents; 8)
adults who exhibited special care and concern for the decedent; 9) persons acting as guardians; and 10) other persons authorized to dispose of the decedent’s body).
20. But see Muireann Quigley et al., Organ Donation and Priority Points in Israel: An
Ethical Analysis, 93 TRANSPLANTATION 970, 971 (2012) (contrasting with Israeli policy,
granting registered donors priority to receive transplants if needed during life).
21. E.g., N.Y. Organ Donor Network, Take Action, http://www.donatelifeny.org/take-action/register-to-become-a-donor (last visited May 22, 2014) (“Enrollment in the New York
State Donate Life Registry . . . legally empowers you to save lives–no one can reverse your
decision to give the gift of life when you add your name to the database.”).
22. DONATE LIFE AM., supra note 2, at 6. In Montana, eighty-two percent of the adult
population is registered as of 2013. Id.
23. Id. at 4.
24. Id. at 1 (noting forty-one percent of recovered organ donors, forty-six percent of
recovered tissue donors, and fifty percent of recovered eye donors were registered).
25. Laura A. Siminoff et al., Factors Influencing Families’ Consent for Donation of
Solid Organs for Transplantation, 280 JAMA 71, 72-73 (2001).
26. But seeDAVIDPRICE,HUMANTISSUE INTRANSPLANTATION ANDRESEARCH: A
MODEL LEGAL AND ETHICAL FRAMEWORK 134-35 (2010) (arguing that allowing family member consent after death indicates that there is in fact no presumption of objection on the part
of the decedent).