could serve to change the views of many families in the future.114 Families
making donation decisions in the absence of a clear expression of the decedent’s wishes are understandably prone to cautious and conservative decision-making. This creates a decisional inertia that amplifies the effect of the
existing rule and limits donation.115 Changing the default rule shifts the balance by making donation, rather than non-donation, the conservative
choice. This should also reduce the incidence of families overriding a decedent’s clear desire to donate, which has historically been a significant problem.116
The existing opt-in approach to organ and tissue donation in the U.S. is
largely functional, but flawed. The system as it stands leaves too many re-
cipients on waiting lists. It fails to recover tissue from too many willing do-
nors who do not adequately express their preferences. And it unnecessarily
burdens donor families. Transitioning to presumed consent will not correct
all of these shortcomings instantaneously, and it will not solve them by it-
self. But by leveraging the power of default legal rules to change the choice
to donate from the exception to the norm, presumed consent has the poten-
tial to change the way Americans think about donation—a key first step in
improving donation rates for all types of tissue and easing the process for
donor families. Opt-in and opt-out systems both hinge on choice, but the
latter offers numerous public health benefits. The time has come to flip the
switch to “On” for donation.
114. See Eric J. Johnson & Daniel G. Goldstein, Defaults and Donation Decisions, 78
TRANSPLANTATION 1713, 1714-15 (2004) (presenting data that questions phrasing that reflects presumed consent was associated with increased willingness to be a donor and comparing donation rates between opt-in and opt-out countries).
115. Whyte et al., supra note 7, at 34.
116. Orentlicher, supra note 6, at 312; Bucklin, supra note 3.