Normative consent and presumed consent for organ donation: a critique

Abstract

Ben Saunders claims that actual consent is not necessary for organ donation due to 'normative consent', a concept he borrows from David Estlund. Combining normative consent with Peter Singer's 'greater moral evil principle', Saunders argues that it is immoral for an individual to refuse consent to donate his or her organs. If a presumed consent policy were thus adopted, it would be morally legitimate to remove organs from individuals whose wishes concerning donation are not known. This paper disputes Saunders' arguments. First, if death caused by the absence of organ transplant is the operational premise, then, there is nothing of comparable moral precedence under which a person is not obligated to donate. Saunders' use of Singer's principle produces a duty to donate in almost all circumstances. However, this premise is based on a flawed interpretation of cause and effect between organ availability and death. Second, given growing moral and scientific agreement that the organ donors in heart-beating and non-heart-beating procurement protocols are not dead when their organs are surgically removed, it is not at all clear that people have a duty to consent to their lives being taken for their organs. Third, Saunders' claim that there can be good reasons for refusing consent clashes with his claim that there is a moral obligation for everyone to donate their organs. Saunders' argument is more consistent with a conclusion of 'mandatory consent'. Finally, it is argued that Saunders' policy, if put into place, would be totalitarian in scope and would therefore be inconsistent with the freedom required for a democratic society.

Normative consent and organ donation: a vindication

“…This argument has recently been subjected to forceful critique 2. The aim of the present note is to clarify and defend my position.…”

“…Nonetheless, it is worthy of further consideration only if it has at least prima facie plausibility. Potts et al criticise me on both moral and political grounds, claiming that donation is not generally a moral obligation and that my proposal is a ‘recipe for totalitarianism’ 2. I believe that they are wrong on both counts.…”

“…Potts et al point to a ‘growing moral and scientific agreement that the organ donors in heart-beating and non-heart-beating procurement protocols are not dead when their organs are surgically removed’ 2. I am aware that the criteria of death are subject of much controversy 3 4.…”

Deceased donation in Asia: Challenges and opportunities

“…Despite the implementation of an opt-out scheme including liver donation in revised legislation in 2004, there has been no increase in donor referral in Singapore 11 because it is legal but irrational and unethical to enforce deceased organ retrieval in the face of resistance from family members. 12 Furthermore, the utilization and actualization rates were low and highly variable among different hospitals. Many cases of nonactualization could not be attributed to any valid reasons.…”

Opt-out organ donation without presumptions

“…Alternatively, one might appeal to some other justification, such as ‘normative consent’, which claims that we can treat people as if they had consented, even when they have not actually done so, if they are under a duty to consent 8. This, combined with the belief that explicit refusal of consent still has force, would provide a neat justification for an opt-out policy, but the notion of normative consent is controversial 9 10. This article presents an alternative justification for an opt-out scheme, which avoids making controversial claims about ‘presumptions’ of consent.…”