bioethical focus on personal autonomy.
95 With an appropriate and extensive
public education campaign, potential donors will have the opportunity to
become informed about the new process, allowing them to make an informed decision about opting out if they so choose. The current system
places the information burden on families, who are inundated with information about donation almost immediately after a family member’s death—
an unnecessary and unwelcome stress. Those opposed to donation currently
have limited incentive to express their position because non-consent is the
default. Under a presumed consent approach, the family of a decedent who
did not opt out could be confident that she generally supported donation, or
at least was not strongly opposed to it. Under the existing approach, families may be hesitant to consent, particularly when family members disagree,
for fear that donation would violate the decedent’s wishes.
For consent to legitimately follow from silence, all affected individuals
must be properly advised of their right and opportunity to object, as well as
the necessity of recording such objection. The essential educational campaign may itself produce positive impacts on donation. As individuals and
families discuss the impact of the new system, they may be more likely to
carefully consider their own views and to make their wishes known. This
may increase donation rates, as more discussion within families regarding
donation is associated with higher likelihood of donation.
96 Such benefits
may also be derived from a mandated choice system,
97 but presumed consent has the benefit of clearly proclaiming that donation is publicly supported, socially beneficial, and the normal course of action absent specific, personal objection.
The existing opt-in system also suffers from a lack of uniformity. Although the legal structure across jurisdictions is consistent,
98 the family approach methodology used by various procurement organizations, in-house
coordinators, and hospital staff is not.
99 Different approaches beget different
consent rates, indicating that the opt-in system does not apply equally to all
decedents and their families. For example, health care practitioners who ask
sumed consent donation of corneas). Family members may also claim limited quasi-property
or due process rights in decedents’ bodies that poorly constructed presumed consent systems
potentially violate. See Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991) (finding a due
process violation in the removal of decedents’ corneas despite widow’s stated objection,
where coroner’s policy was not to review records for evidence of objection before permitting
95. GOSTIN, supra note 55, at 48.
96. Siminoff, supra note 25.
97. THALER & SUNSTEIN, supra note
59, at 180-82; Aaron Spital, Mandated Choice, 273
JAMA 504 (1995).
98. Nationally, forty-six states and the District of Colombia have enacted some form of
the 2006 UAGA. See supra, note 10.
99. Siminoff, supra note at 25.