Brain death certification can be a clinically and ethically challenging affair. Healthcare workers are expected to refer patients for brain death certification to identify potential organ donors, but family members may be ill-prepared for this turn of events. Already distraught families may not appreciate delays in brain death certification, but such delays are common because of the need to manage the patient’s altered physiological state to allow testing. Opportunities for donation are sometimes lost because of the unnecessary delay. With focus (...) on an opt-out organ donation law, we discuss causes of delays in brain death certification, and the ethical issues faced by clinicians in using tests to certify patients. To resolve the issues, we argue for the use of supplementary confirmatory tests as part of a more protocol-driven approach to brain death certification to avoid delays. Such tests should be regarded as part of the donation process funded by the state. (shrink)

One way of increasing the supply of organs available for transplant would be to switch to an opt-out system of donor registration. This is typically assumed to operate on the basis of presumed consent, but this faces the objection that not all of those who fail to opt out would actually consent to the use of their cadaveric organs. This paper defuses this objection, arguing that people's actual, explicit or implicit, consent to use their organs is not needed. It borrows (...) David Estlund's notion of ‘normative consent’ from the justification of political authority and applies it to the case of organ donation. According to this idea, when it is wrong to withhold consent to something, the moral force of that lack of consent may be null and void. If it is wrong of a person to refuse to donate their cadaveric organs to others, then it may be that their actual consent is not needed. This supports an opt-out system, which provides protection for those who have genuine reasons to refuse donation, and spares the worries as to what the deceased would actually have wanted. (shrink)

In this chapter, we provide an overview of the ethical considerations relevant to the use of nudges in organ donation policy. We do not defend a position on the permissibility of nudging in this context, but instead aim to clearly outline the strongest arguments on the different sides of this issue that have been presented in the English-language scholarly bioethics literature. We also highlight the questions that are in need of further investigation. In part 1, we briefly discuss nudging before (...) considering proposals to use nudges to increase the number of registered organ donors, including opt-out donor registration systems and the use of “nudge statements.” In part 2, we discuss the use of nudges to influence the decision-making of family members in circumstances where they have a veto over the donation of their loved one’s organs. (shrink)

In this paper, we thoroughly investigate the various solutions proposed to solve the problems of transplantation system in Romania. Three types of solutions are especially envisaged: legislative ones, institutional ones and cultural/religious ones. We carefully analyze the main ethical and logistical arguments on presumed consent and its alternatives in Romania: family consent provided by the relatives and mandated choice. Special attention is dedicated both to institutional solutions (organizational, educational and information issues) and to religious arguments and motivations, for there were (...) several indicators of their importance for Romanian bioethical discourse in general and for their prevalence in transplantation debates in particular. . (shrink)

Many people in desperate need of an organ will die on waiting lists for transplantation or face increased morbidity because of their wait. This circumstance is particularly troubling since many viable organs for transplantation go unused when individuals fail to participate in their local organ donation system. In this paper, I consider whether participating in organ transplantation should be considered a form of a rescue of others from the great harms caused by a shortage in transplantable organs. Specifically, I consider (...) whether cadaver organ transplantation is a case of an easy rescue. If so, participation in cadaver organ transplantation will be a duty rather than a supererogatory act.1 This question is important in illuminating individual duties to participate in organ transplantation. Moreover, as I will argue, it has repercussions for community-wide policies for enrolling individuals in transplantation schemes. -/- In the first section of this paper, I tie cadaver organ transplantation to the duty to rescue others from great harm when it is easy to do so. Given the number of persons who will die or be greatly harmed without transplanted organs, the transfer of organs upon death is seemingly similar to other, classical cases of easy rescue. In the second section, I consider objections to this proposal on the ground that cadaver organ transplantation is structurally dissimilar to classical rescue cases, especially given uncertainty over when and to whom organs will be transplanted, if they are transplanted at all. In the third section, I consider the objection that cadaver organ transplantation is a demanding, rather than easy, rescue. While I grant that cadaver organ transplantation will be demanding for some persons, I argue that there remain many cases where it will be an easy rescue. In the final section, I consider the policy implications of my argument. In particular, I argue that understanding cadaver organ transplantation as a duty should shift the debate over opt-out, opt-in, and mandatory choice procedures for participating in organ transplantation upon death. While different systems will be appropriate for different communities, understanding transplantation as a duty in some cases helps to justify an opt-out system. (shrink)

A chief objection to opt-out organ donor registration policies is that they do not secure people's actual consent to donation, and so fail to respect their autonomy rights to decide what happens to their organs after they die. However, scholars have recently offered two powerful responses to this objection. First, Michael B Gill argues that opt-out policies do not fail to respect people's autonomy simply because they do not secure people's actual consent to donation. Second, Ben Saunders argues that opt-out (...) policies do secure people's actual—if not explicit—consent, provided that certain conditions are satisfied. I argue that Gill and Saunders’ arguments are not successful. My conclusion does not imply that jurisdictions should not implement opt-out policies—their failure to secure people's actual consent may be outweighed by other considerations. But, my conclusion does imply that Gill and Saunders are mistaken to claim that opt-out policies are respectful of people's autonomy. (shrink)

This article concerns the morality of establishing regulated kidney markets in an effort to reduce the chronic shortage of kidneys for transplant. The article tries to rebut the view, recently defended by James Taylor, that if we hold autonomy to be intrinsically valuable, then we should be in favor of such markets. The article then argues that, under current conditions, the buying and selling of organs in regulated markets would sometimes violate two Kantian principles that are seen as moral constraints. (...) One principle forbids expressing disrespect for the dignity of humanity; the other forbids treating others merely as means. In light of the moral danger posed by regulated markets, the article advocates an alternative way of diminishing the current organ shortage, namely opt-out systems of cadaveric organ donation. (shrink)

Organ procurement policy from the recently deceased recasts families into gatekeepers of a scarce medical resource. To the frustration of organ procurement teams, families do not always authorize organ donation. As a result, efforts to increase the number of organs available for transplantation often seek to limit the authority of families to refuse organ retrieval. For example, in some locales if a deceased family member has satisfied the legal conditions for first-person prior assent, a much looser and easier standard to (...) satisfy than informed consent, organ retrieval may proceed despite the family’s objections. Some countries have replaced voluntary consent to organ donation with forms of organ conscription. Often referred to under the misnomer “presumed consent,” such policies legalize the harvesting of organs at death, unless individuals exercise official options to opt out. As this article explores, however, there are good grounds for affirming the authority of the family to consent to or to deny organ donation on behalf of recently deceased family members, as well as to reject first-person assent and “presumed consent” policies of organ procurement. Insofar as individuals have failed clearly and competently to provide informed consent to organ donation, moral authorization for the use of the person and his body ought to be grounded on the foundational authority of the family, rather than the state’s supposed interests in obtaining organs for transplantation. (shrink)

Background Posthumous organ procurement is hindered by the consenting process. Several consenting systems have been proposed. There is limited information on public relative attitudes towards various consenting systems, especially in Middle Eastern/Islamic countries. Methods We surveyed 698 Saudi Adults attending outpatient clinics at a tertiary care hospital. Preference and perception of norm regarding consenting options for posthumous organ donation were explored. Participants ranked (1, most agreeable) the following, randomly-presented, options from 1 to 11: no-organ-donation, presumed consent, informed consent by donor-only, (...) informed consent by donor-or-surrogate, and mandatory choice; the last three options ± medical or financial incentive. Results Mean(SD) age was 32(9) year, 27% were males, 50% were patients’ companions, 60% had ≥ college education, and 20% and 32%, respectively, knew an organ donor or recipient. Mandated choice was among the top three choices for preference of 54% of respondents, with an overall median[25%,75%] ranking score of 3[2,6], and was preferred over donor-or-surrogate informed consent (4[2,7], p vs. 11[6,11], respectively, p = 0.002). Compared to females, males more perceived donor-or-surrogate informed consent as the norm (3[1,6] vs. 5[3,7], p vs. 8[4,9], p vs. 5[2,7], p Conclusions We conclude that: 1) most respondents were in favor of posthumous organ donation, 2) mandated choice system was the most preferred and presumed consent system was the least preferred, 3) there was no difference between preference and perception of norm in consenting systems ranking, and 4) financial (especially in females) and medical (especially in males) incentives reduced preference. (shrink)

Nudges involve designing social “choice contexts” to promote what “experts” regard as beneficial for individuals and the society, by making the “right” choices easier. The most common form of nudge...

Background and purpose Changes to deceased organ donation policy in the USA, including opt-out and priority systems, have been proposed to increase registration and donation rates. To study attitudes towards such policies, we surveyed healthcare students to assess support for opt-out and priority systems and reasons for support or opposition. Methods We investigated associations with supporting opt-out, including organ donation knowledge, altruism, trust in the healthcare system, prioritising autonomy and participants’ evaluation of the moral severity of incorrectly assuming consent in (...) opt-in systems or opt-out systems, by conducting an online survey among healthcare students at a large academic institution. Results Of 523 respondents, 86% supported opt-out, including 53% who strongly supported the policy. The most popular reason for supporting opt-out was the potential for increased donation rates, followed by convenience for those not registered but willing to donate. The most popular reason for opposing opt-out was the belief that presuming consent is morally wrong. Those strongly supporting opt-out viewed the opt-in error as more morally unacceptable, and had higher knowledge and altruism scores. Those opposing opt-out viewed the opt-out error as more unacceptable, and had higher autonomy scores. 48% of respondents supported priority within opt-in systems; 31% supported priority in opt-out. Conclusions There is strong support for opt-out organ donation among healthcare students, influenced by both practical and moral considerations. (shrink)

The demand for donor organs for transplantation in the UK far exceeds the supply. A number of improvements in the infrastructure surrounding organ donation, as well as attempts to increase public awareness, have been made over recent years, but there remains a massive shortfall. It has been proposed that a system of presumed consent for organ donation, in which all individuals are considered to be potential organ donors after death unless they have previously opted out, may serve to increase the (...) supply of organs. Recently the Welsh Assembly passed a Bill introducing presumed consent by 2015, but the debates regarding legislative changes are still on-going in England, Scotland and Northern Ireland. The ethical implications of presumed consent legislation are at the centre of these discussions. When examined by a principlist approach, presumed consent may be deemed to be an ethically beneficial measure to increase organ donation rates. It is argued here that the system of presumed consent may actually be more respectful of the principle of autonomy than a system of explicit consent, on the basis that it goes against the wishes of the fewest number of people, and it has clear benefits in terms of beneficence and justice whilst also being compatible with the principle of nonmaleficence. Although there is some debate about the precise impact that presumed consent would have on donation rates, there is evidence to suggest that it would result in an increase in the donor organ supply, when combined with improvements in education and infrastructure. (shrink)

Gametes, tissue, and organs can be taken from the dying or dead for reproduction, transplantation, and research. Whole bodies as well as parts can be used for teaching anatomy. While these uses are diverse, they have an ethical consideration in common: the claims of the people whose bodies are used. Is some use permissible only when people have consented to the use, actually wanted the use, would have wanted the use, not opposed the use, or what? The aim of this (...) article is to make progress in answering these questions. Initially I assume knowledge of people’s desires in order to test whether consent is directly required by their rights without worrying about mistaken uses against their wishes. I claim consent is not directly required by people’s rights. If we know people wanted or would want a use, their rights permit the use, but if we know they wanted or would want not to be used, their rights do not permit the use. The knowledge assumption is then dropped and the question becomes how to decide what to do when the wishes of rightholders are not known. I suggest working out what to do when wishes are known and then adjusting, on the basis of whatever evidence there is, for probability and strength of desire. There are other considerations too, for instance about default rules. The key general comment here is that, in setting rules, the costs to rightholders in not getting what they want needs to be taken into account. The final section tries to show that, in setting these rules, mistaken uses are not to be taken as worse than mistaken failure to use. (shrink)

Clear and careful thinking is an indispensable aid in the pursuit of answers to the difficult ethical question faced by clinicians, patients, and families. In this issue of The Journal of Medicine and Philosophy devoted to issues in clinical ethics, the authors engage in this enterprise by reflecting on morally good medical decision making, conscientious objection, presumed consent in organ donation, the permissibility of surrogate decision making, and the failure of legislative limits on the scope of euthanasia in Belgium.

“Opt-out” organ procurement policies based on presumed consent are typically advertised as being superior to “opt-in” policies based on explicit consent at securing organs for transplantation. However, Michael Gill has argued that presumed consent policies are also better than opt-in policies at respecting patient autonomy. According to Gill’s Fewer Mistakes Argument, we ought to implement the procurement policy that results in the fewest frustrated wishes regarding organ donation. Given that the majority of Americans wish to donate their organs, it is (...) plausible that a presumed consent policy would result in fewer frustrated wishes compared to the current opt-in policy. It follows that we ought to implement a policy of presumed consent. In this paper, I first consider and find wanting an objection to the Fewer Mistakes Argument developed recently by Douglas MacKay. I also consider an objection put forth by James Taylor but argue that there is a methodological reason to prefer my own argument to Taylor’s. Finally, I argue for two theses: first, that Gill’s major argument in favor of the crucial premise of the Fewer Mistakes Argument is flawed, and second, that the major premise of the Fewer Mistakes Argument is false. (shrink)

This article explores the meaning and moral significance of presumed consent with particular reference to an opt-out policy for postmortem organ donation. It does so under two general categories: circumstances where we believe consent to have been given and those where we have no reason to believe that it has either been given or been refused. In the context of an opt-out policy, the first category would relate to the idea of tacit consent. It is argued both that substituting the (...) term ‘presumed consent’ would be misleading and that it is unlikely that the conditions for tacit consent would be met in practice. Regarding the second category, where the claim would be one regarding counterfactual consent, two main points are made: that claims about consent are unwarranted, and also that they are unnecessary to moral argument, given that the moral work is done by reasons other than any supposedly provided by a presumption of consent. (shrink)

In an effort to solve the shortage of transplantable organs, there have been several proposals to introduce an opt-out approach to deceased organ donation in England. In seeking to enact the so-called ‘opt-out proposal’ via an amendment to the Human Tissue Act 2004, The Organ Donation Bill 2017–19 represents the most recent attempt at such legal reform. Despite popular calls to the contrary, I argue in this paper that it would be premature for England, or, indeed, any country, to adopt (...) an opt-out approach at this time. Not only is the available evidence inconclusive on whether introduction of the opt-out proposal would increase the supply of transplantable organs, but there is also a chance that doing so might bring about an otherwise avoidable moral harm through an unjustified interference with individual autonomy. I maintain that the resources required to change the law to such effect would be better expended on alternative, provenly efficacious and less contentious mechanisms for increasing the supply of transplantable organs, such as: improving communication with the family of the deceased, developing infrastructure, raising public awareness and enhancing staff training, attitudes and understanding towards organ donation. (shrink)

Bioethicists often remind health care professionals to pay close attention to issues of diversity and inclusion. Approaches to ethics consultation, where the perspective of the bioethicist is taken to be more morally correct or necessarily authoritative, have been critiqued as inappropriately authoritarian. Despite such apparent recognition of the importance of respecting moral diversity and the inclusion of different viewpoints, authoritarianism is all too often the approach adopted, especially as bioethics has shifted evermore into concerns for public policy. Yet, secular values (...) and philosophical principles are not morally neutral; nor are the private moral convictions of bioethicists. Such analysis is always grounded in particular understandings of the right and the good, the virtuous and the just. Critical examination of common treatments and new alternatives is essential for the careful scientific practice of medicine. The same is true with regard to bioethics. Stagnating in customary or accepted claims of a common secular morality or a standard set of bioethical principles out of an unwillingness to explore the real diversity of moral thought, including traditional religious and cultural worldviews, fails to tap the human capacity to find innovative solutions to the complex challenges facing medicine. (shrink)

Most people think it is wrong to take organs from the dead if the potential donors had previously expressed a wish not to donate. Yet people respond differently to a thought experiment that seems analogous in terms of moral relevance to taking organs without consent. We argue that our reaction to the thought experiment is most representative of our deepest moral convictions. We realize not everyone will be convinced by the conclusions we draw from our thought experiment. Therefore, we point (...) out that the state ignores consent in performing mandatory autopsies in some cases. If readers are willing to give up the permissibility of mandatory autopsies, we then offer some metaphysical arguments against posthumous harm. Drawing upon claims about bodies ceasing to exist at death and Epicurean-inspired arguments against posthumous interests, we make a case for an organ conscription policy which respects fundamental liberal principles of autonomy, bodily integrity, and property. (shrink)

The State may require an autopsy when foul play is suspected in the death of one of its citizens.[1] This is so regardless of any objections to such invasive procedures expressed by the deceased before their deaths or afterward by their families. There is not even a religious exemption. The most obvious explanation for why consent is not needed is that apprehending a murderer with information obtained from the autopsy can save lives. However, taking organs without consent from the deceased (...) for transplantation into those suffering vital organ failures can also save lives. But doing so is considered beyond the pale. The question then becomes why are mandatory autopsies permitted but organ conscription prohibited? Our aim is to explore whether such divergent attitudes can be justified. (shrink)