would be ineffectual if contrary to parental wishes,
66 making presumed consent demonstrably inappropriate. Additionally, like other next of kin who
may provide consent, parents may have limited due process and quasi-property rights regarding the bodies of their children.
67 Such rights would
likely be stronger for parents than other next of kin.
68 The complexity of issues of autonomy regarding minors alters the balance of individual interests
and public health benefit discussed above, necessitating a different approach that relies exclusively on parental consent. For adults, however, the
public health benefits of presumed consent argue in favor of such an approach.
III. PRESUMED CONSENT AND EYE AND TISSUE DONATION
Although they share many similarities, there are key differences between
organ transplantation and eye and tissue transplantation. The U.S. Food and
Drug Administration (FDA) regulates tissue transplantation, while the U.S.
Department of Health and Human Services (HHS) Health Resources and
Services Administration regulates organ transplantation.
69 Organs are in
much shorter supply, owing largely to the specific circumstances required
to facilitate procurement.
70 As a result, requirements and restrictions are
sometimes more flexible. For example, many decedents who would not be
medically suitable eye or tissue donors may be suitable organ donors.
that minors generally lack legal capacity in this area is not unassailable, at least with respect
to adolescents. Id.
66. UNIF. ANATOMICAL GIFT ACT § 8(g)-(h) (updated 2009), 8A U.L. A. 49 (Supp.
67. See Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002) (finding due process right in control of child’s corneas after death); but see Ga. Lions Eye Bank, Inc. v. La-vant, 335 S.E.2d 127 (Ga. 1985) (finding no constitutionally protected rights in a decedent’s
body that would invalidate a system that failed to provide notice prior to procurement of
child’s corneas and noting that any quasi-property rights must bow to the state’s public
health authority where exercised reasonably, impartially, and not inconsistently with general
state policy); see also Brendan Abel, Physician Assisted Homicide in Organ Donations After
Cardiac Death: The Failure of Biotechnologies to Comply with the Uniform Definition of
Death Act and the Dead Donor Rule, 7 J. HEALTH & BIOMEDICAL L. 573, 582-83 (2012)
(discussing conflicting judicial treatment of presumed consent under older presumed consent
frameworks). Of note, even if there are property rights in a decedent’s organs and tissues, it
is a long-established power of the state to determine how property rights are distributed in
the absence of the known wishes of the decedent. See, e.g., RESTATEMENT (THIRD) OF PROP.
§ 2. 1 (1999) (discussing general principles of intestacy).
68. See, e.g., Pierce v. Soc’y of the Sisters, 268 U.S. 510 (1925) (establishing substantive due process right of parents to control upbringing and education of children).
69. U.S. Food & Drug Admin., Tissue and Tissue Product Questions and Answers (
updated Oct., 14, 2009), http://www.fda.gov/BiologicsBloodVaccines/TissueTissueProducts/
70. Ellen Sheehy et al., Estimating the Number of Potential Organ Donors in the United
States, 349 NEW ENG. J. MED. 667, 671 (2003).
71. Even HIV-positive donors may be acceptable for organ procurement, at least for