a family member might reasonably think, “If my loved one wished to donate, she would have registered.”
27 In contrast, several other nations use an
opt-out system, also known as “presumed consent” or “default to donation.”
28 In such systems, donation may occur unless the decedent or next of
kin expressly object.
29 Under this model, the underlying assumption is thus
reversed: those who do not explicitly decline or make such wishes known to
family members do not oppose donation.
30 As discussed in Part IV, infra,
presumed consent facilitates the opposite thought, “If my loved one did not
wish to donate, she would have opted out.”
In order to respect decedents’ wishes, a key provision of the 2006 UAGA
provides that consent registered by the decedent is not revocable by next of
kin unless the decedent expressly indicated a subsequent objection to donation.
32 This legally authorizes procurement from a registered donor without
33 In practice, however, procurement organizations almost
always consult family members.
34 In a number of cases, the family either
refuses to participate or explicitly denies consent.
35 While the procurement
organization could legally proceed with the donation in such cases, they
rarely do so out of respect for the family’s wishes and concern for public
perception of donation. On occasion, donation does proceed, which often
results in a legal and public relations quagmire.
The existing system already presumes that willingness to donate outpac-
27. See id. at 135.
28. Amanda M. Rosenblum et al., The Authority of Next-of-Kin in Explicit and Presumed Consent Organ Donation: An Analysis of 54 Nations, 27 NEPHROLOGY DIALYSIS
TRANSPLANTATION 2533, 2533 (2012).
29. Id. at 2541.
30. See id. at 2533.
31. See Orentlicher, supra note 6, at 300. Some U.S. states formerly used a form of limited presumed consent, such as for deaths under medical examiner jurisdiction, but generally
now follow the opt-in approach of the 2006 UAGA. Id.
32. UNIF. ANATOMICAL GIFT ACT §
8(a) (amended 2009), 8A U.L. A. 49 (Supp. 2013)
(“[I]n the absence of an express, contrary indication by the donor, a person other than the
donor is barred from making, amending, or revoking an anatomical gift of a donor’s body or
part if the donor made an anatomical gift of the donor’s body or part under Section 5 or an
amendment to an anatomical gift of the donor’s body or part under Section 6.”). This language firmly protects the wishes of the decedent, even if contrary to those of family members, and is even stronger in this regard than prior language from the 1987 UAGA. See UNIF.
ANATOMICAL GIFT ACT §
2(h) (1987), 8A U.L. A. 2 (Supp. 1988) (“An anatomical gift that is
not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor’s death.”).
33. UNIF. ANATOMICAL GIFT ACT §
8(a) (amended 2009), 8A U.L. A. 49 (Supp. 2013).
34. See Rosenblum, supra note 28, at 2541.
35. Siminoff, supra note 25, at 71.
36. See, e.g., Allison Manning, Family Loses Fight to Keep Son’s Organ from Donation, COLUMBUS DISPATCH (July 12, 2013, 9:05 AM), http://www.dispatch.com