Presumed consent should not alter efforts to encourage individuals to
join donor registries. An individual’s stated wishes are preferable to presumption of any kind. Presumed consent addresses solely those whose
wishes are not known. Personal reflection and family conversations owing
to a policy change to presumed consent may even increase registry participation by emphasizing the importance of affirmatively stating one’s preferences. When an individual explicitly consents or rejects donation, that decision should receive firm legal support.
Some question whether presumed consent plays too much into the inaccurate but long-standing public fears that medical professionals may provide lesser care to individuals in instances where organs could be recovered.
45 The transplantation community has worked for decades to counter
46 Although such erroneous beliefs are difficult to
purge, presumed consent could actually lessen, rather than exacerbate, these
concerns. In fact, a larger pool of potential donors should provide less reason to worry about unethical actions based on organ scarcity.
Many may object to presumed consent on the basis that it is inconsistent
with general principles of informed consent in health care. The right of
competent adults to refuse unwanted medical treatment is well-established.
48 However, a more apt analogy is the unconscious emergency
room patient, who, like a decedent, cannot express their wishes. Such patients are usually treated aggressively, on the premise that most individuals
would desire this if given the choice.
49 According to opinion data, donation
is also the majority choice by a wide margin.
50 There are distinctions, of
course, including emergency room care being intended to save or improve
the patient’s life; yet this, too, has a conceptual analogue in donation. Nothing more can be done for the donor, but donation can save and enhance the
45. E.g., Kieran Healy, Why Revive Old Fears?, N.Y. TIMES, May 2, 2010,
donation/?_r=0. (arguing that advocating for presumed consent could raise fear among patients and their next of kin that quality of care will lessen in order to favor organ procurement).
46. See Gift of Life Donor Program, Busting Myths About Organ Donation,
http://www.donors1.org/learn2/myths/ (last visited May 22, 2014) (explaining that medical
professionals prioritize saving a patient’s life before any consideration of potential organ
47. See Orentlicher, supra note 6, at 322-24 (explaining arguments both for and against
the proposition that more donors will alleviate potentially unethical action by physicians).
48. See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990) (“The principle
that a competent person has a constitutionally protected liberty interest in refusing unwanted
medical treatment may be inferred from our prior decisions.”).
49. John C. Moskop, Information Disclosure and Consent: Patient Preferences and
Provider Responsibilities, 7 AM. J. BIOETHICS
47, 47 (2007).
50. Sara Krieger, Incentivizing Organ Donation: A Proposal to End the Organ Shortage, 38 HOFSTRA L. REV. 757, 759 (2009).