IV. PRESUMED CONSENT AND DONOR FAMILIES
Many of the best candidates for donation die unexpectedly. Sudden
trauma (e.g., motor vehicle accident or gunshot) or swift disease processes
(e.g., heart attack or stroke) are common causes of death among donors.
Even registered donors do not always discuss their decision with family
members. As a result, most decedents’ families are in an exceedingly diffi-
cult position when approached regarding donation. In the wake of losing a
close family member, they must make decisions about what the decedent
would have wanted, often with little or no guidance or indication of her
wishes. Family members are understandably prone to applying their own
values to the question, rather than the decedent’s.
92 The concept and details
of donation are complex and better understood through personal reflection,
rather than a time-sensitive decision thrust upon grieving relatives. Such
circumstances may put family members at odds with procurement organiza-
tions, as well as other family members. There is an explicit hierarchy of
family members who may provide consent for donation,
93 but if family
members hold conflicting beliefs, what begins as a discussion about an al-
truistic “gift of life” can instead produce additional strain for an already be-
Presumed consent absolves decedents’ families of many concerns inherent to the current opt-in system. A family can be more confident in their decision to proceed with donation, knowing they are not making a decision
their loved one strongly opposed. Donation registration efforts would continue, and donation advocates would still encourage registered donors to
discuss their wishes with family members. The key change in presumed
consent is viewing those who say nothing as having no objection to donation. This allows inclusion of those who support donation but fail to express
those beliefs directly, while respecting the autonomy of those opposed by
providing a simple and effective means to opt out.
Presumed consent removes the current need for family members to provide consent and shifts the burden from the family to the decedent, who ultimately has the greatest interest in her own body.
94 This is consistent with a
91. U.S. Dep’t of Health & Human Servs., Health Res. & Servs. Admin., Organ Donation: The Process, http://www.organdonor.gov/about/organdonationprocess.html#process1
(last visited May 22, 2014) (“Most donors are victims of severe head trauma, a brain aneurysm or stroke.”).
92. Paula Boddington, Organ Donation After Death—Should I Decide, or Should My
Family?, 15 J. APPLIED PHIL.
69, 76 (1998); Orentlicher, supra note 6, at 311-12.
93. See supra note 11, at § 9a( 1)-( 10).
94. One could argue that this interest terminates at death, but existing legal and ethical
norms generally acknowledge an autonomous interest in bodily integrity that also encom-passes treatment of one’s body and remains after death. Contra Tillman v. Detroit Receiving
Hosp., 360 N.W.2d 275, 277 (Mich. App. 1984) (holding that constitutional privacy rights
terminate at death and cannot be invoked by decedents’ families or estates in relation to pre-