lives of organ and tissue recipients. Those who desire less aggressive or
non-standard care in the emergency room—e.g., Jehovah’s Witnesses, persons with Do Not Resuscitate orders—generally have the burden to express
51 Similarly, those who object to donation have every right to
do so, but may reasonably be made responsible for recording their objections, rather than imposing decision-making on family members.
Individual autonomy is a core value of bioethics, and debates over proper
protection of this interest in donation are extensive. Many scholars argue
that presumed consent threatens autonomy, noting that it is a marked break
from the informed consent generally required for medical procedures.
This is only one of the various ethical concerns raised by proposals for presumed consent for donation.
53 However, others persuasively argue that the
existing opt-in system can equally violate autonomy by failing to procure
organs and tissues from those who wish to donate but whose wishes were
54 While these debates continue, it is critically important to en-
51. Do not resuscitate orders, MEDLINEPLUS (updated Apr. 7, 2014),
http://www.nlm.nih.gov/medlineplus/ency/patientinstructions/000473.htm (“If you DO want
to receive CPR, you don’t have to do anything. If you do NOT want CPR, talk with your
doctor about a DNR order.”); Douglas R. Migden & G. Richard Braen, The Jehovah’s Witness Blood Refusal Card: Ethical and Medicolegal Considerations for Emergency Physicians, 5 ACAD. EMERGENCY MED. 815, 815 (1998) (“It is general practice for adult Witnesses
to carry on their person a wallet-sized advance directive card refusing blood.”); Nayna
Philipsen et al., Surrogate Decision-Making: How to Promote Best Outcomes in Difficult
Times, 9 J. NURSE PRACTITIONERS 581, 583 (2013).
52. See, e.g., Maryellen Liddy, The New “Body Snatchers”: Analyzing the Effect of
Presumed Consent Organ Donation Laws on Privacy, Autonomy, and Liberty, 28 FORDHAM
URB. L.J. 815, 852 (2001) (arguing that presumed consent is not necessary due to adequate
available alternatives); Alexander Powhida, Forced Organ Donation: The Presumed Consent to Organ Donation Laws of the Various States and the United States Constitution, 9
ALB. L.J. SCI. & TECH. 349, 353-54 (1999) (asserting that presumed consent laws in many
states will likely be found unconstitutional under the Fourteenth Amendment’s Due Process
53. See, e.g., Orentlicher, supra note 6, at 317-20 (explaining the ethical differences
between the risks of mistakenly taking an organ from an actually unwilling individual based
on presumed consent compared to mistakenly not taking an organ from an actually willing
person); Marie-Andrée Jacob, Another Look at the Presumed-Versus-Informed Consent Dichotomy in Postmortem Organ Procurement, 20 BIOETHICS 293, 297-98 (2006) (
emphasizing the potential burden on vulnerable populations and arguing that default rules should run
counter to the position of the stronger party in consent decisions, specifically against the
government in the case of donation). In light of significant differences in consent rates across
racial/ethnic lines, any change to a presumed consent structure must also include specific
outreach to inform minority populations of changes to consent rules to avoid unduly burdening individual autonomy among individuals in these groups.
54. Orentlicher, supra note 6, at 313-16 (discussing the risks involved with presumed
and actual consent for both patients that wanted to donate and those that did not). Instances
of family members overriding the wishes of registered donors by refusing consent is a separate but important issue that is not addressed here. See generally Bucklin, supra note 3 (
describing the legal and ethical implications resulting from allowing next of kin to block consent). There are a variety of other issues at stake, as well, including the impact of various