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According to figures published by NHS Blood and Transplant
in July 2017, over 50,000 people are alive in the UK today thanks to organ
donations. Even though this milestone figure has been reached, there is still a
large shortage of organ donors (1).
In the UK, there are currently 6,500 people waiting for an organ. Annually,
only 5,000 out of approximately 500,000 people who die in the UK, die in
circumstances which allow their organs can be donated. Because of this
shortage, three people die a day waiting (2).
There are ethical issues surrounding these shortages. A way to avoid these
questions, it has been suggested that ‘organ donation should be on an opt-out
basis’ in order to increase the amount of donor organs to match the amount
needed. But this in itself raises ethical questions which I will be discussing
in this article.

At the moment in England, organ donation is on an ‘opt-in’
basis where donation will only occur with consent before death or after
consultation with family members. An ‘opt-out’ system means that unless the
deceased has explicitly said before death that they do not want to be an organ
donor then consent will be presumed. The ‘opt-out’ systems can be divided into
two categories. The ‘hard’ opt-out where the family of the deceased is not consulted
and ‘soft’ opt-out where the family has a say (3).
In a recent Parliamentary debate on organ donation, Labour MP Dan Jarvis said:
“England must now move to an opt-out system. The evidence is clear –
hundreds of people a year are paying a price of us not doing so.” (4).
In 2006, the UK government appointed the Organ Donation Taskforce to find ways
in which to boost the organ donation rates. Two years later in November 2008,
this taskforce released a report which did not recommend taking up the ‘opt-out’
system. ‘An opt out system has the potential to erode the trust between
clinicians and families at a distressing time. The concept of a gift freely
given is an important one to both donor families and transplant recipients. The
Taskforce feels that an opt out system of consent has the potential to
undermine this concept.’ (5). This view has slowly changed since then though
with the BMA releasing a report in 2012 recommending the opt-out system as the
best option for the UK to improve its rates of donation (6). In December 2017, a
consultation process was announced in England to ask the general public whether
they support the opt-out system (2).

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Some of the ethical issues that a presumed consent system
faces are that those for it may say that it is a person’s civic duty to give
their organs to those who need it once they have passed away. However, those
against may say that people who would choose not to donate organs due to
religious and cultural must be respected and they may be unfairly burdened as opting-out
may prove to be difficult for them due to language barriers (7). In countries
such as Singapore where a ‘hard’ opt-out system has been adopted there has been
up to a 25% increase in organ donor rates (4).
They have included their Muslim community in this system where there has been a
fierce debate as to whether organ donation is permissible within the religion.
Although many Islamic scholars voice their support for it, some also question
whether bodies that are not intact on their judgement day would be affected (5).

Another ethical issue with switching to a presumed consent
system is that people who would normally object to the donation of their own
organs may not opt out because they are not aware of the opt-out system or may
be embarrassed or ashamed to do so because of the positive stigma that
surrounds organ donation (8).


Giving organs vs
Taking them

A crucial ethical concern with a presumed consent system is
how the public view the act of donation itself. Fundamental to existing methods
for opting in is the notion that the donation is a gift either to the
individual receiver of the transplant or to society as a whole as a greater
good. This chimes with perceptions that donation is an altruistic act that the
giver ‘gifts’ as a positive act of volition. Any move to a hard opt out model
could be construed as removing this altruistic component. Furthermore it raises
notions that mandatory presumed consent is a state intervention, that is that
the organs are being taken rather than given.

This is a contentious issue to which the existing legal
framework can offer suggestions as to how we view it both legally and
ethically. Currently it is a principle that a dead body is not a legal property
for which ownership is applicable. This therefore may also apply to the organs
of the deceased. One would assume therefore that legally an organ transplant
could be made without express consent. However the status of this legally we
can see from outcry over issues such as the Alder Hey Royal Children’s Hospital and
the Bristol Royal Infirmary show that the
public has quite a different view (see also BBC News ‘Hospital to bury unclaimed organs’) . Such perception by the public if not addressed legally
beforehand was certainly addressed after these scandals with the Human Tissue Act 2004 which has made “consent a fundamental principle in the
removal, storage and use of body parts, organs and tissues”. 

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