Bioethics in Faith and Practice, Volume 3, Number 1

16 Marquardt ⦁ Consent for Organ Donation Another possibility is that members of society who choose to opt out of donating could be viewed with contempt. One ethicist bluntly states that if a person has to “take positive action to prevent donation, not donating looks actively mean. ” 34 A person who appears miserly or unwilling to help others is prone to mistreatment. Instead of simply looking more favorably upon donors, medical professionals could begin subtle discrimination against the newly created class of explicit non-donors. Finally, the subversion of justice that would be most likely to occur as a result of opt out policy implementation would be the unequal dissemination of information. Those who are homeless or do not speak one of the major languages might not hear about or properly understand the new system. The failure to opt out could not be taken as tacit consent for people who do not know how the system works, as will be further discussed under autonomy. The possibility that marginalized groups may have their individual rights infringed upon pushes the principle of justice to rule against presumed consent. Autonomy “An autonomous or self-determining person is someone who chooses or devises a plan for her life, rather than having one imposed on her by others or allowing circumstances to dictate one, and proceeds to live in accordance with that plan,” explains Robert Young of Latrobe University . 35 Autonomy is perhaps the most important ethical principle in the discussion of presumed consent, because the most common objection against presumed consent is that it does not give an individual default rights over her body, but instead makes her take an action if she is opposed to donating her organs after death. Assumed in this argument is the idea that every individual has a right to bodily integrity, as propounded by Locke. Locke argues that property, including the body, is the best guarantee of liberty in that it marks a boundary the state cannot cross . 36 Evidence that this principle continues even after death is found in the traditional sacred nature of burial or cremation and the right of an individual to determine what will be done with his own body post- mortem. Immanuel Kant, the premier proponent of deontological ethics, foundational for principlism, also asserts a relevant ethical claim in his second formulation of the categorical imperative. He asserts that one must “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.” 37 The assumption that an individual’s organs may be used to save the life of another without explicit consent from the donor is quite clearly an instance of treating the donor as a means. While it is admirable to treat the potential organ recipient as an end and endeavor to give all possible medical aid, the donor candidate must also be treated as an end, which precludes making any unfounded assumptions about what the individual’s desires may have been. From a different perspective, proponents of presumed consent claim that the fact that organ donation approval numbers are so much higher than donation rates shows that many people’s wishes are actually not being followed . 38 Under this logic, the autonomy of a greater number of people would be respected under presumed consent. However, it is not clear that approval of organ donation in general implies a personal desire to donate, and it certainly does not imply informed consent. To perform nearly all non-emergency medical procedures, informed consent is required. As Beauchamp and Childress, the premier proponents of modern principlism, write, If consent is presumed on the basis of what we know about a particular person’s choices or values, it reduces to either implied or express consent. If consent is presumed on the basis of a general theory of human goods or of the rational will, the moral situation is more problematic. Consent should refer to an individual’s actual choices, not to presumptions about the choices the individual would or should make. 39