Bioethics in Faith and Practice, Volume 3, Number 1

14 Marquardt ⦁ Consent for Organ Donation While the data indicate that implementing presumed consent may possibly increase donor rates, several mitigating factors not yet mentioned warrant consideration. First, one author argues that Spain, the country with the world’s highest donor rates and counted as a presumed consent country in the studies above, does not truly operate on a presumed consent system. 25 Further scrutiny shows that Spain’s introduction of presumed consent legislation, approved by parliament in 1979 26 , did not produce a significant effect, so major organizational and infrastructure changes were made ten years later. At that point, Spain’s donor rates began to increase to what they are today. In fact, the Director of the Spanish Organ Donation Organisation co-authored a paper in 2010 that asserts the presumed consent legislation in Spain is not enforced, and further investigation reveals that written consent of the family is actually required before organ removal can proceed . 27 Since donor rates did not increase until organizational changes led to better awareness and societal acceptance of organ donation, the true explanation of Spain’s high donor rates seems to be their cultural acceptance and 85% family acceptance rate . 28 Another reason that data from other countries might not apply well to the U.S. is based on current policy and enforcement. Since first person authorization law technically overrides the desires of the family if a donor is registered, and it is still not evenly enforced by OPOs, switching to a soft presumed consent system where families always have the right to veto donation could end up resulting in the loss of the ability to overrule a family who disagrees with the donor’s prior decision to donate. The solution to this could be to instead use a hard presumed consent rule where the family cannot opt a person out, but this seems likely to provoke public backlash. On the whole, data seems to show that implementing presumed consent may increase the number of organ donors; however, the numbers are far from conclusive due to the impossibility of controlling for all factors. Nonetheless, if increasing donor numbers were the only concern in crafting policy, presumed consent would probably be worth trying. That being the case, ethics are worth considering before coming to a final decision on presumed consent. Principlism and Presumed Consent Beneficence “I will use treatment to help the sick according to my ability and judgment,” states the Hippocratic Oath . 29 While this principle seems obvious as the basic premise of medicine, implementation can be complex in practice. Beneficence is a complicated topic when applied to organ donation because multiple parties have an interest to consider. The primary consideration is always the patient at hand; indeed the American Medical Association Principles of Medical Ethics states that “a physician shall, while caring for a patient, regard responsibility to the patient as paramount.” 30 Nevertheless, this principle does not apply to a donor candidate in the normal, straightforward way because the primary medical team has already declared the person dead. Nonetheless, respecting the desires of a patient could still arguably be required by beneficence. Where the situation becomes even more muddled is when the potential recipients are considered. It could be argued that when a patient dies and medical personnel can no longer help that person, their responsibility goes to helping another patient, namely one who could benefit from the organs of the decedent. Indeed, one formulation of beneficence states that “One has an obligation to prevent serious evil or harm when one can do so without seriously interfering with one’s life plans or style and without doing any wrongs of commission.” 31 One might argue from this that the organ procurement organization has the obligation to prevent harm to patients who need organs by giving them organs from the patient who has died and can no longer be physically harmed. On the other hand, others might argue that the possibility of transgressing the will of the deceased donor candidate is truly a “wrong of commission” which would then negate the obligation under beneficence. Indeed, though it is a reasonable expectation under beneficence that donor candidates have regard for the common good and the specific good of potential recipients, that type of beneficence is the prerogative of the donor and no one else. The idea of presuming consent adds another layer. Making an unfounded assumption about what a deceased patient would have desired is not supported by the obligation to respect living wishes. Nonetheless, the obligation to help patients languishing on the transplant list when the only possible harm could be to a deceased individual will be persuasive to some. If