According to figures published by NHS Blood and Transplantin July 2017, over 50,000 people are alive in the UK today thanks to organdonations. Even though this milestone figure has been reached, there is still alarge 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 incircumstances which allow their organs can be donated.
Because of thisshortage, three people die a day waiting (2).There are ethical issues surrounding these shortages. A way to avoid thesequestions, it has been suggested that ‘organ donation should be on an opt-outbasis’ in order to increase the amount of donor organs to match the amountneeded. But this in itself raises ethical questions which I will be discussingin 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 afterconsultation with family members. An ‘opt-out’ system means that unless thedeceased has explicitly said before death that they do not want to be an organdonor then consent will be presumed. The ‘opt-out’ systems can be divided intotwo categories. The ‘hard’ opt-out where the family of the deceased is not consultedand ‘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 waysin 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 betweenclinicians and families at a distressing time. The concept of a gift freelygiven is an important one to both donor families and transplant recipients. TheTaskforce feels that an opt out system of consent has the potential toundermine this concept.
‘ (5). This view has slowly changed since then thoughwith the BMA releasing a report in 2012 recommending the opt-out system as thebest option for the UK to improve its rates of donation (6). In December 2017, aconsultation process was announced in England to ask the general public whetherthey support the opt-out system (2).Some of the ethical issues that a presumed consent systemfaces are that those for it may say that it is a person’s civic duty to givetheir organs to those who need it once they have passed away. However, thoseagainst may say that people who would choose not to donate organs due toreligious and cultural must be respected and they may be unfairly burdened as opting-outmay prove to be difficult for them due to language barriers (7).
In countriessuch as Singapore where a ‘hard’ opt-out system has been adopted there has beenup to a 25% increase in organ donor rates (4).They have included their Muslim community in this system where there has been afierce debate as to whether organ donation is permissible within the religion.Although many Islamic scholars voice their support for it, some also questionwhether bodies that are not intact on their judgement day would be affected (5). Another ethical issue with switching to a presumed consentsystem is that people who would normally object to the donation of their ownorgans may not opt out because they are not aware of the opt-out system or maybe embarrassed or ashamed to do so because of the positive stigma thatsurrounds organ donation (8). Giving organs vsTaking themA crucial ethical concern with a presumed consent system ishow the public view the act of donation itself.
Fundamental to existing methodsfor opting in is the notion that the donation is a gift either to theindividual receiver of the transplant or to society as a whole as a greatergood. This chimes with perceptions that donation is an altruistic act that thegiver ‘gifts’ as a positive act of volition. Any move to a hard opt out modelcould be construed as removing this altruistic component. Furthermore it raisesnotions that mandatory presumed consent is a state intervention, that is thatthe organs are being taken rather than given.This is a contentious issue to which the existing legalframework can offer suggestions as to how we view it both legally andethically. Currently it is a principle that a dead body is not a legal propertyfor which ownership is applicable.
This therefore may also apply to the organsof the deceased. One would assume therefore that legally an organ transplantcould be made without express consent. However the status of this legally wecan see from outcry over issues such as the Alder Hey Royal Children’s Hospital andthe Bristol Royal Infirmary show that thepublic has quite a different view (see also BBC News ‘Hospital to bury unclaimed organs’) . Such perception by the public if not addressed legallybeforehand was certainly addressed after these scandals with the Human Tissue Act 2004 which has made “consent a fundamental principle in theremoval, storage and use of body parts, organs and tissues”.