The Ethics of Human Rights (30): Organ Donation and Presumed Consent

Health and survival are human rights. Many people’s health and survival depend on organ transplants. However, there are more people requiring organs than people donating them. Hence, the question of how to increase organ availability, which I have discussed many times before on this blog (see here for instance). My favorite policy is presumed consent : if people during their lifetime don’t explicitly opt-out and deny the use of their organs after death, it is assumed that they consent to this use. There’s evidence that presumed consent raises donation rates by perhaps 20-30%.

However, presumed consent may perhaps not be enough to eliminate the shortage. And although it may solve part of the problem, it may also create some problems. Some people might feel uneasy when the state can automatically decide what happens to their bodies or to the bodies of their loved ones after death. The public might also start to wonder whether surgeons would become too eager to harvest organs, stop life support somewhat early and move the border between life and death (the definition of the moment one dies isn’t an unchanging variable throughout human history). But that’s also a problem with opt-in systems.

Another problem with presumed consent, but also other types of cadaveric donation such as opt-in, is the constraint imposed by the number of people who die in a way that makes their organs available for transplant.

Does all this mean we have to abandon cadaveric donations in general and presumed consent in particular? And rush towards a free market in organs for the living? That could perhaps eliminate the shortage completely, at least for those able to buy the organs and on the condition that there are enough desperate souls “willing” to sell. The latter is of course a condition that’s easily met when we allow international free trade – many places in the world are vast resources of desperateness.

(If you doubt the risk of free trade pushing desperate people to sell their organs, look at Iran. Most donors in Iran are extremely poor. Maybe you think it’s good that poor people have options to do something about their poverty. I agree, but I prefer that they have other options and aren’t forced to commodify themselves, especially when this commodification entails health risks).

I don’t think free organ trade of live donations is a good idea, given the problems with that option outlined here. (Although I might be persuaded by the argument that prohibition of a widespread activity is always futile and a regulated market a lesser evil; e.g., one could offer tax credits for live donations). There’s still a lot of elasticity in presumed consent and the few problems it raises can be solved, in my opinion. The horror story of doctors switching off life support and plundering bodies is precisely that, a story. Countries that are reluctant to implement presumed consent because of such reasons can be convinced, I think, especially given the success of other countries that have it.

Even in countries that have presumed consent and that have therefore increased organ availability, things can be improved. The rights of relatives to veto could be restricted. (Personally, if I would have made the conscious choice of opting in or of not opting out, I wouldn’t be comfortable with the possibility that my relatives have the right to disrespect my will after death). In addition, the transplant system (logistics, transport, availability, procurement etc.) could be made more effective, including in countries that decide to stick with opt in.

Beyond presumed consent of cadaveric donation, live donation of certain organs could be encouraged (though preferably not through market systems). Countries that don’t want to go to presumed consent could make it more likely for people to opt in in a system of cadaveric donation: Israel for example allows opt-in donors and their families to jump the waiting line for transplants when they should need an organ themselves. That’s an interesting idea, but it could throw up some other problems. Also, technology could come to our aid; perhaps in some time we can make organs from stem cells.

13 thoughts on “The Ethics of Human Rights (30): Organ Donation and Presumed Consent”

  1. If we’re going to presume people are organ donors unless they opt out, we should also give people a reason to NOT opt out. Donated organs should be allocated first to those who haven’t opted out. People who opt out of organ donation should go to the back of the transplant waiting list. The United Network for Organ Sharing, which manages the national organ allocation system, has the power to make this simple policy change. No legislative action is required.

    Americans who want to donate their organs to other registered organ donors don’t have to wait for UNOS to act. They can join LifeSharers, a non-profit network of organ donors who agree to offer their organs first to other organ donors when they die. Membership is free at or by calling 1-888-ORGAN88. There is no age limit, parents can enroll their minor children, and no one is excluded due to any pre-existing medical condition.

    Giving organs first to organ donors will save more lives by convincing more people to register as organ donors. It will also make the organ allocation system fairer. People who aren’t willing to share the gift of life should go to the back of the waiting list as long as there is a shortage of organs.


  2. Dr. Spagnoli, I have to once again disagree with you on this issue.

    Economists actually spend time looking at this kind of stuff. One thing they’ve noticed in the behavior of people is that they don’t make an affirmative decision, for various reasons. So if the box on the diver’s license registration says they’re not willing to donate organs by default, chances are it will stay that way. If the box on the registration says they are willing to donate organs by default, it’s likely to stay that way. That is, people generally don’t make a decision either way. They leave it at default.

    There are several problems. One is that the empirical evidence does not support the notion that the opt-out system makes a significant impact on the rate of “donation.” I use quotations, because it’s quite dubious to call a system that relies on people being either ignorant or lazy “donation.” However, it’s also clear enough that opt-in (current system in the U.S.) does not generate enough organs to meet the demand for them.

    Another problem is that family decisions often override the decision of the deceased. Even if someone has opted-in to donate their organs upon death, the family can override this. Opt-out is faced with the same problem. This is why some have advocated a mandatory choice. It makes the individual specifically state their wishes, and this decision would be final (that is, the family cannot override the donator’s decision posthumously).

    I’m still doubtful that such a measure would still bring the supply of donated organs up to meet the demand for them. The reason is that there lacks enough incentive for people to give up their organs upon death. Another reason is because it’s currently illegal to sell and purchase organs. The arguments against disallow a market for organs are mostly foolish, in my opinion. The bottom line is that must needlessly die for a want of a healthy organs. There’s a market solution. Allow organs to be bought and sold. Empirical evidence from Iran strongly supports this measure.

    You admit the market force have the potential to eradicate needless deaths, but prefer, ultimately, that people not resort to “commodifying” themselves. I say, so what? It saves the lives of real human beings. That’s what matters. What possible ethical argument can you give that says letting someone die is more humane than to allow someone to sell their organs so that person might live? There is no ethical argument to be made. The onus is also on you to show how the sale of blood, bone marrow, sperm, ovarian eggs, or bearing children (all of which have markets) do not constitute commodification. Furthermore, even if the sale of organs (and these other things just listed) do constitute commodification, so too does our labor. When we labor, we are selling our body for a certain wage to perform a task. That’s commodification of our body. In some leftist circles, it’s called wage slavery. But we don’t outlaw the sale of labor, do we? No, that would be foolhardy.


  3. Sorry, I haven’t read your book. It does sound interesting; maybe some day I’ll read it. In any case, we might agree that wage labor is an unnatural phenomenon, not particularly helpful for human development, dehumanizing, etc. But is the proper response to outlaw labor? Do we say that corporations and laborers can no longer sell and buy labor on the market? That seems very extreme. Likewise, it’s extreme to say we ought to outlaw the sale and purchase of organs on the market because it’s dehumanizing or tantamount to commodification. If you’re a utilitarian, the choice ought to be clear. If you believe somethings are always right or wrong no matter what (e.g. deontology), then I think you ought to believe that it’s always wrong to allow tens of thousands of people to needlessly die because it’s politically correct.


    1. Benjamin, I don’t want to outlaw organ sales, just limit it (I wasn’t explicit about that in this post but I was in previous ones). Like wage labor, organ sales are market mechanism with detrimental side effects in some cases. I have no problems witht the sale of renewable organs such as blood or skin for example. I’m just afraid that a categorical opening of the market will have dehumanizing effects on those desparate enough to do anything to survive (or to allow their children to survive, with the absurd logical conclusion of a complete dismemberment and the sale of every organ) or to engage in risky medical interventions. I don’t think such fears are wolly imaginary, except if you have an ideological faith in the benefits of free markets. I never hear about possible market failures from those advocating free trade in organs.

      So I’m not categorically opposed, just pragmatically. And much of my opposition stems not only from possible market failures but also from the underrated benefits of other, non-commercial systems. You as well, as a more reasonable proponent of free trade, continually neglect the evidence of these benefits – I did include a piece of evidence in this post showing that presumed consent does increase organ availability – as well as the possible elasticity in the benefits (elasticity based on elements you also mention, such as descendant veto etc.).


  4. I don’t doubt that presumed consent can increase the rate of organ “donation” (again, in quotations due to the dubious pretext of such “donations”). The problem, though, is that it doesn’t go far enough. That is, it doesn’t solve our problems. In fact, there are even places with opt-out systems that have comparatively low donation rates, such as Israel and Sweden. So I think it’s clear that it’s not a viable solution to the problem.

    (I ought to first mention, though, that you say you’re fine with markets for renewable organs, like blood or sperm. First, I don’t find the distinction between renewable and nonrenewable totally relevant. Second, considering modern liver transplantation in live patients consists of removing only a portion of the liver from the donor that will regenerate and return to full functionality within a matter of a few weeks, do you now support a market for livers? Third, the sale of bone marrow, which is renewable, is <a href=""a serious crime in the United States. Should that be changed?)

    I understand your argument against a market for organs. Markets do have failures. The argument is that the poor are desperate, so they’ll be forced to sell organs against their own will. But if this is true, this would be true of all economic decisions they make. The poor, qua the poor, are thus irrational and incapable of making economic decisions for themselves, and therefore the government has to protect the poor from themselves. I don’t necessarily buy that argument.

    I’m poor enough that I am I desperate enough to dehumanize myself and sell my labor. But that’s perfectly legal. Why? If your argument is that if it weren’t for the money incentive being offered, the poor would never choose to sell their organs, that’s equally true for all economic activity. Dell wouldn’t offer me a computer, for example, if it weren’t for the money incentive being offered. So what I’m failing to see is how the poor are currently better off when we outlaw the sale and purchase of organs, i.e. disallowing the poor to receive money that would help alleviate their predicament.

    However, some people may be wary of markets no matter what, and always be opposed to them. Fine. We don’t have to necessarily rely on markets to sell and purchase organs. How about a system where the government pays donors for their organs and then distributes these as equitably as possible? I think this would remove a lot of the fears about unfair market allocations. What say you?


    1. Regarding renewables/unrenewables, my intuition is that the latter generally involve less risks for the donor, but I may be wrong. I agree with your point about bone marrow and US law.

      The poor may indeed be desperate in other market operations as well, but not all market transactions involve the same health risk or imply the same reductio ad absurdum I mentioned in my previous reply.

      It’s not that I assume the poor are irrational and self-destructive. It’s that they don’t have the choice of not being self-destructive. Generally, the argument in favor of commercial donation – that the poor can benefit – assumes tacitly that there are no other acceptable ways to help the poor. I suspect that many people – probably not you – use this argument with a hidden agenda: they really want to limit or eliminate other pro-poor measures (many will be anti-welfare for instance). I don’t see commercial donation as a particularly efficient pro-poor policy and prefer other policies.

      I don’t count myself among those who are systematically anti-market. (See my recent post on international free trade and poverty for instance).

      You proposal about “central planning” of the market is promising and I did mention it in a previous post.


  5. Well I am glad we agree about the “central planning” proposal. I would like to mention, however, that I make my argument in favor of the sale and purchase of organs not because I don’t care about the poor or because I think we should end other measures to help the poor; just the opposite, in fact. I think allowing people, whether they’re poor or not, to sell their organs is to their benefit. I think it has the potential to help the poor. At the same time, I still believe we should be doing more, e.g. welfare, to help the poor. That’s perfectly fine. I don’t find these two ideas to be mutually exclusive. The real purpose here, of course, is to put an end to the needless deaths of people who lack healthy organs. It can be put to an end and I think it ought to be.


  6. Take out the emotion and think of the facts.
    Presumed consent has never been proposed for anything unless the proposer or the cause has had something to gain that would not be given without it.
    No one should ever have to opt OUT of anything.
    The figures I have found were of 90% of people in favour of transplants, only 24% actually got around put their name on the register.
    So, the same applies,
    Of the objectors ,whatever the numbers, only 24% ( my guess is much less ) would actually get around to opting out!
    This means inevitably some people will be cannibalised after death against there wishes.
    This is not the way to do it.
    To have your remains cannibalised without your express wish in righting, for any reason MUST BE AGAINST THE MOST BASIC OF HUMAN RIGHTS.
    If the figures above are anywhere near correct the people advocating presumed consent could get hundreds of potential donors from per day from outside the local supermarket, but this way is easier.
    In our concern for the unfortunate please dont forget your morals.


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