Staff are able to approach families in a role of providing information and
facilitating the donation process, bringing family members into a positive
discussion about fulfilling the decedent’s wishes.
Where the potential donor is not registered, the consent approach can
take on an unpleasant veneer of salesmanship. Though procurement organization staff are well-trained to avoid such appearances, health care staff
may not always receive the same training.
110 Regardless of the care and tact
of the approach, families may nonetheless feel that staff are “selling” donation. This may color families’ views and negatively affect their relationship
with the procurement organization. An opposite problem may also arise
when approaches are overly cautious and tacit in solicitation of consent,
leading family members to hesitate when uncertain of a decedent’s wishes
because donation appears to be the disfavored choice.
111 Presumed consent
would allow staff to discuss donation from the position of facilitator—
rather than salesperson or supplicant—more akin to the approach taken for
registered donors. Although even that relationship is imperfect, as evidenced by existing family vetoes,112 it remains generally positive and
should improve further if presumed consent succeeds in altering the cultural
view of donation. Presumed consent would allow procurement organization
staff to do what they do best: offer attentive care and relevant information
to families, assess the medical potential for donation, and facilitate the donation process.
Commenters rightly point to family objection as a primary obstacle to
improving donation rates, and they argue that presumed consent does little
in and of itself to resolve the issue.113 While the impact of presumed consent may not be immediate, it may ultimately be profound. Beyond direct
gains in procurement of suitable donors though an expanded consent pool,
presumed consent offers further gains through the secondary effects of
changing cultural views and norms regarding donation. Current discussion
and promotion of organ and tissue donation focus on “The Gift of Life,”
and emphasize the altruistic nature of consent. This is laudable, accurate,
and entirely appropriate given the current consent structure. A change in
this paradigm from “gift” toward “duty” or at least “moral obligation”
would be even better. Presumed consent may not succeed in shifting the
conversation quite that far, but even a change in what is considered “
normal” would pay significant dividends from a public health perspective and
109. Siminoff, supra note 25, at 74.
110. Jacoby & Jaccard, supra note 106, at 59.
111. See T. Elizabeth Weathersbee & Douglas W. Maynard, Dialing for donations:
practices and actions in the telephone solicitation of human tissues, 31 SOC. HEALTH &
ILLNESS 803, 812-13 (2009).
112. Siminoff, supra note 25, at 74-75.
113. Orentlicher, supra note 6, at 297.