sure proper education and assistance to enable all individuals to make
choices consistent with their wishes.
At the same time, organ and tissue donation is more than a health care issue: it is a public health issue. Favoring an outcome that benefits the public’s health despite minimal intrusion on individual autonomy is consistent
with established norms of public health ethics, provided that autonomy receives proper consideration and protection and there is no intentional harm
to individual interests.
Presumed consent does have an inescapable paternalistic character. Opting out carries no repercussions, but making consent the default choice is a
nudge toward a specific course of action. Choosing not to donate may result
in harm to others (e.g., those awaiting a transplant who may not receive
one), arguably inviting the harm principle56 as an ethical justification. However, this argument is unlikely to overcome the self-regarding nature of control of one’s own body, even after death. As a result, a legitimate justification of presumed consent must embrace its paternalistic qualities, even if
mild compared to other public health interventions.
Though deserving significant deference and protection, individual autonomy is not an inviolable principle. From a public health ethics standpoint,
proper balancing of individual autonomy interests against public health
goals permits at least some degree of non-coercive paternalism, even for
wholly self-regarding behavior.
57 The encroachment on individual autonomy in presumed consent is minimal, and the public health need is great.
There must be a default rule—either consent or non-consent. The government has the authority to choose the one that encourages behavior that is
beneficial to public health. The current system, in some respects, discourages donation by making it the exception, rather than the rule.
The modern mantra of public health advocates has been “Making the
Healthy Choice the Easy Choice.”
58 Public health policy can leverage default options for the benefit of individual and public good without unduly
compromising free choice.
59 These policies can and should strive to make
systems on vulnerable populations. E.g., Jacob, supra note 53 (discussing the pressure and
risks of exploitation for vulnerable populations in donation consent).
55. See LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT 43 (2d
56. See id. at 47-49 (explaining harm principle as an ethical basis for public health intervention).
57. See, e.g., James F. Childress et al., Public Health Ethics: Mapping the Terrain, 30
J.L. MED. & ETHICS 170, 171-72, 175-76 (2002).
58. E.g., Harvard Sch. of Pub. Health, Obesity Prevention Source: Making Healthy
Choices Easy Choices, http://www.hsph.harvard.edu/obesity-prevention-source/policy-and-environmental-change (last visited May 22, 2014).
59. See, e.g., RICHARD H. THAYER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS
ABOU T HEALTH, WEALTH, AND HAPPINESS