es donor registration.
37 Millions of Americans are registered, but less than
half of procurements come from this group.
38 Health care, medical examiner, and funeral home staff routinely refer deaths to procurement organizations or approach family members for donation consent themselves.
hospitals are obligated to refer deaths and imminent deaths to procurement
40 Approaching family members when a decedent was unregistered recognizes that many still wished to be donors. By extension, it also
assumes that those who objected would have expressed this; otherwise approaching the family would inappropriately circumvent the decedent’s
wishes. In this light, a presumed consent system is more similar from existing practices than may appear at first glance.
A “soft” presumed consent system, as used in a considerable majority of
presumed consent countries, permits next of kin to override the presumption
of consent even if the decedent did not register any objection.
41 In a “hard”
presumed consent system, as used in countries like Belgium and Sweden,
only the decedent’s formal objection can override the presumption—family
members have no legal authority to do so, even if they produce evidence
that the decedent actually opposed donation.
Soft presumed consent retains a significant role for donor families. This
is more similar to the existing U.S. system and represents a better approach.
Failures of previous presumed consent regimes in the U.S. appear to be the
direct result of woefully inadequate communication with donor families,
and such mistakes should not be repeated.
43 Appropriate and significant
contact between procurement staff and families impacts how families view
donation and is associated with higher consent rates under the existing system.
44 Such contact is equally important under a presumed consent system.
37. See DONATE LIFE AM., supra note 2, at 5-8 (indicating that in 2012 there was a forty-two percent Donor Designation Rate, yet seventy-six percent of adults willing to donate
believe they are registered to be organ or tissue donors).
38. Id. at 1 (noting that registered donors account for forty-one percent of organ donors,
forty-six percent of tissue donors, and fifty percent of eye donors).
39. Donate Life Am., Tissue Donation, http://donatelife.net/understanding-donation/
tissue-donation/ (last visited May 22, 2014).
40. 42 C.F.R. §§ 482.45, 485.643 (West, WestlawNext through May 15, 2014; 79 Fed.
41. See Rosenblum, supra note 28, at 2542. Some notable adopters of soft presumed
consent include: Armenia, Austria, Belarus, Chile, Colombia, Costa Rica, Croatia, Czech
Republic, Ecuador, France, Italy, Luxembourg, Norway, Paraguay, Slovenia, Spain, Tunisia,
and Turkey. Id.
43. See, e.g., Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002) (concerning
parents who brought suit following procurement of their child’s corneas after death without
notice to them); see also Orentlicher, supra note 6, at 305-08 (describing two cases involving
absence of notice to family members of organ retrieval from deceased patients)..
44. See Siminoff, supra note 25, at 76-77.