Bioethics in Faith and Practice, Volume 3, Number 1

Bioethics in Faith and Practice ⦁ 2017 ⦁ Volume 3 ⦁ Number 1 17 True informed consent assumes the requestor has disclosed relevant information, authorized decision makers have decisional capacity, information is in language they can understand such that they can appreciate the implications of the decision, and the communication takes place under circumstances that allow them to make and communicate a free and voluntary informed choice. 40 The American Medical Association’s policy on presumed consent affirms that “donations under presumed consent would be ethically appropriate only if it could be determined that individuals were aware of the presumption that they were willing to donate organs and if effective and easily accessible mechanisms for documenting and honoring refusals to donate had been established.” 41 Whether these standards are met under presumed consent depends on the exact method in which it is implemented. Presumably, informational pamphlets would be disseminated by mail, but there is no guarantee that the information would be successfully delivered, opened by the recipient, or properly understood. It is also not clear how it could be ensured that all occupants received the proper information. Additionally, there is the problem of the homeless and the undocumented. How would people without an official address get the information? All residents could be required by law to attend informational gatherings or return a signed form that affirms understanding and agreement, but it would be just as easy at that point for a person to give explicit consent. Regardless of the exact mechanism used to disseminate information, it is very difficult to assume that all potential donors who are presumed to have consented to organ removal have actually been properly informed . 42 Without such consent, Justice Cardozo’s words in the Schloendorff v. The Society of New York Hospital opinion apply: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.” 43 While it could be argued that under the current system informed consent on the part of the donor is not always required, such as in the case where the donor’s wishes were not explicit and the family decides to donate, the operative concept is that a family member is in the best position to know the potential donor’s intent. In fact, Beauchamp and Childress argue that judgment on behalf of once-competent patients should only be made by a representative if there is reason to think the decision may be made as the patient would have wished. The family members should not be deciding based on their own desires but rather based on what they know of their deceased relative’s views and values. 44 Even if one concludes that the current procedures do not adequately follow informed consent, that is hardly reason to move further away from ensuring proper consent. For individual autonomy to truly be respected, consent for the use of organs must be ensured, and consent must be freely given, not presumed. If even one person’s organs are removed without true consent as a result of public policy, that would be an institutionalized moral failure. Conclusion To properly frame the ethical discussion of implementing a presumed consent organ donor system in the United States, we began by examining the nature and magnitude of the organ shortage. We then reviewed current first person authorization organ procurement policy and explored what practical changes presumed consent would have on procedures and protocols. Next, we pragmatically considered what type of impact presumed consent legislation would actually have on the number of available transplants, determining that while presumed consent is more likely than not to improve the number of organ donors, it is far from conclusive. Finally, we discussed how each of the four moral pillars of principlism impact the ethical validity of presumed consent. Beneficence considerations involve both the potential donor, potential recipient, and the possible impact presumed consent could have on how medical professionals view future donors. Ultimately, though beneficence toward the donor candidate pushes against presumed consent, the overall principle is not clear enough on its own to make a definitive judgment either way. Non-maleficence is also somewhat against presumed consent due to the possible erosion of doctor-patient trust, but this argument is not conclusive. Justice quite clearly disfavors an opt out policy because of the increased possibility of discrimination against certain groups a doctor may disfavor, against the new class of explicit