The Corner

Health Care

Nevada Legislation to Presume Consent for Organ Donation

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The organ donation is purely voluntary in this country; that is, the donor or family have to consent. This is known as an “opt-in” system.

But with waiting lists growing, the push is on for the law to presume consent to organ harvesting; that is, unless one explicitly “opts out” of being a donor while alive, their organs are automatically available for procurement after death.

Nevada — which now permits dementia patients to order themselves starved to death when they become incapacitated — has legislation that would change the state’s system from opt-in to opt-out. The bill is very awkwardly worded, deploying double negatives. From SB 134 (the bracketed words are existing law to be deleted):

A donor may make an anatomical gift: (a) By [authorizing] not refusing to authorize a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor’s driver’s license or identification card) By [authorizing] not refusing to authorize a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor’s driver’s license or identification card.

In other words, driver’s licenses or ID cards would normally come printed with consent to donation, that would only be revoked if the person refused to authorize that default message. One must object to refuse donation. Doing nothing provides automatic consent.

Is this a good idea? While certainly well-intentioned, I think not.

It is true that some European countries — France and Spain, for example — enacted presumed consent and experienced increases in the number of donors. But we are not Europe. People of the United States tend to value individualism over collectivism, autonomous decision-making over imposed ‘greater good’ utilitarian mandates. Indeed, I believe that presumed-consent laws could unleash a boomerang effect: Many might resent the new approach as government coercion and protest by taking the opt-out option.

We are also a society riven by distrust. The Obamacare debate, with its specter of “death panel” rationing boards and waiting lines, significantly undermined the people’s faith in our medical system. So have the many COVID imbroglios. Now, mix in already existing “futile care” policies — such as the Texas law permitting hospital ethics committees to refuse wanted life-sustaining treatment based on “quality of life” or the cost of care — and you have a perfect prescription for distrusting a medical system in which the very ill might be (almost unconsciously) looked upon as so many organ farms instead of patients with equal moral value.

Finally, there is the issue of integrity. Organ donation received acceptance from a wary public precisely because of the promises, solemnly made, that only the organs of the truly dead would be taken and then, only with specific consent. Break either of those promises, and I suspect that the shaky faith people have in the organ-transplant system would plummet.

If doctors ever start taking organs without explicit permission of donor or family — even if allowed by law — there will be hell to pay. Indeed, if we reverse our presumptions from opt-in to opt-out, I believe we could end up with fewer donated organs, with increased disputation and litigation. It’s just not a risk worth taking.

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