Bioethics in Faith and Practice, Volume 3, Number 1

12 Marquardt ⦁ Consent for Organ Donation While several distinct, insightful moral frameworks could reasonably be chosen to analyze the ethics of presumed consent, for the sake of coherence and brevity, this paper will evaluate the policy only from the ethical framework termed ‘principlism.’ In the author’s opinion, this system is the best choice because it is tailored to bioethics discussions, is practical and easy to apply to specific scenarios, and is a common- ground approach that attempts to use principles that are largely agreed upon by major ethical systems such as utilitarianism, Kantian deontology, natural law theory, Divine Command Theory, and virtue ethics. This system also garners much support in the medical community, being rooted in tradition that reaches all the way back to Hippocrates and codified in international law . 10 Principlism bases ethical determinations on the four principles of autonomy, beneficence, non-maleficence, and justice, which this paper will explore individually later on in the context of presumed consent. Before getting into a discussion of ethics, we will review current organ donation policy in the U.S. and touch on the likely impact implementation of a presumed consent system would have. At that point, this paper will examine presumed consent in light of each of the four pillars of principlism and will conclude that while commitment to a presumed consent organ donor list is tempting due to its potential to save lives, it fails to be ethically justifiable under principlism. Would Presumed Consent Work in the United States? Current United States Policy Currently the U.S. operates on an explicit consent system, which means either an individual must consent to organ donation before death, or the individual’s family must give permission if no prior decision is documented. Since 1987, ‘required request’ policy has mandated that whenever a deceased potential donor has not made an explicit decision one way or the other, medical personnel are required to discuss donation as a possibility with a family member or legal representative. 11 In 2006, the Revised Uniform Anatomical Gift Act (UAGA) was issued by the National Conference of Commissioners on Uniform State Laws, which recommends nonpartisan procedural legislation to states. The UAGA enacts the first person authorization (FPA) rule, which means a person’s wishes expressed by signing a donor card or other official document, like a driver’s license, or by joining a donor registry may not be revoked by the family . 12 13 All but four states have adopted the UAGA, and the remaining four have enacted FPA individually. 14 15 Though the policy seems clear on paper, some evidence indicates that FPA is not always enforced. The team that actually removes organs from a deceased individual is part of an Organ Procurement Organization (OPO) and is intentionally separate from the medical team responsible for the patient’s care and declaration of death by neurological or cardiac criteria. A 2014 blinded survey of the 58 OPOs nationwide revealed that only about 80% claim to conform to FPA, 49% assert that impact on family is either somewhat likely or very likely to impact organ procurement, and 9% overtly report that they are not likely to procure organs in the case that the potential donor is registered but the family objects. 16 Other factors that influenced 29% or more of OPOs practice were effect on donor rates, potential legal liability, and adverse publicity . 17 Fortunately, most OPOs estimated that a conflict between the wishes of the donor and the family occurred in less than 10% of cases. 18 In short, although a person’s wish to donate is now legally guaranteed even if the family objects, it is not always carried out in practice. The change from explicit consent to a presumed consent system would significantly alter the current procedure. While presumed consent could play out several different ways when it comes to procedural details, it would at a minimum change the way the family is approached. They may simply be informed rather than asked if organs may be taken from their loved one, or the topic may be ignored altogether. A soft presumed consent law would allow the family to object to organ removal, while hard presumed consent would allow only the donor candidate to opt out before death.