Should Donative Intent Be Presumed To Increase The Number
Of Organs Available For Transplantation?

By Elaine A. Lisko, Health Law & Policy Institute, and Sarah Brandoff, candidate for J.D. 1999

Certain facts about organ donation and transplantation are known:

What remains to be resolved is how to increase organ supply to meet demand in the face of these known facts. One proposal is to presume an individualís consent to organ removal and donation in the absence of an express objection forbidding it. Under this "presumed consent" proposal, organ donors would not have to complete or carry organ donation cards, physicians would not have to request or await family membersí approval, and family members would not have to make another potentially difficult decision during an otherwise stressful time.

Dr. Phil Berry, a Dallas surgeon and the head of the Texas Medical Association, is reported to support a system of presumed consent. In Ďpresumed consentí system, all patients considered donors, Hous. Chron., May 3, 1998 (3 star ed.), § A, at 20. Dr. Berry has indicated that he intends to promote legislation that "assume[s] most people want to donate." Id.

Although this proposal appears to address some of the problems with organ donation, it may create others. First, it involves a significant departure from the present system in terms of approach as well as form. Second, it may be viewed as an unlawful invasion of an individualís right to bodily integrity and personal autonomy. Third, it conflicts with certain religious beliefs. Fourth, it requires special provision for the disposition of childrenís organs. Fifth, its effectiveness is uncertain.

Currently, an individual must express the intent to donate. This intent is often reflected on an individualís driverís license, a means that is provided for by law in a number of states, including Alabama, Arkansas, Colorado, Florida, Georgia, Idaho, Louisiana, Missouri, New Jersey, New York, North Carolina, Pennsylvania, Vermont, Virginia, West Virginia, and Wyoming. Texas provided for inclusion of donative intent on a driverís license previously but discontinued this practice on September 1, 1997. A system based on presumed consent stands in stark contrast to the current system.

A system based on presumed consent also raises constitutional concerns relating to an individualís substantive due process rights to personal freedom. In order to survive a constitutional challenge, any legislation based on the proposal would have to serve a legitimate state interest while using the least restrictive means possible. This is not an easy burden to satisfy especially where other, less invasive means of increasing organ donation may exist.

Such a system is also problematic because it conflicts with various religious laws and cultural beliefs. For example, followers of Islam may donate their organs, but only if they consent in writing before their death. Jehovahís Witnesses, likewise, may donate their organs, but only if the organs are completely drained of blood before transplantation. Jewish law prohibits stealing anotherís organs and mandates burial of the dead within a specified period of time. Certain Native Americans and Gypsies believe that all body parts must remain in tact in order to pass to the next life. This conflict raises questions about how the proposed system should be administered to accommodate such laws and beliefs.

A system based on presumed consent raises questions about the extent of its applicability to classes of individuals, like minors, as well: Does a minor have the right to opt out of the system? Is the decision that of the minor or the parents? Whose decision prevails where a conflict exists?

Finally, while certain European countries have found a system of presumed consent to be effective, other countries have had mixed results. Given the radical departure that the proposal takes from the present system and the seriousness of the rights involved, mixed results would arguably not be enough to support enactment of the proposal as law. Moreover, unless all states pass the proposal as law, with regional allocation and distribution of organs, the residents of one state may bear a much greater burden, while receiving little benefit.

Less invasive measures adopted by a number of states may provide a more workable solution to encouraging organ donation at least until some of the issues can be resolved. These measures include: (1) requiring hospitals to notify organ procurement organizations of every death (Pennsylvania and Tennessee); (2) requiring hospital donor protocols to include referrals to organ procurement organizations, training of hospital staff, and establishment of measures that make obtaining consent easier (Arizona); (3) increasing participation in donor registries (Illinois); and (4) increasing public awareness by allowing residents to make a one dollar donation to an organ donor awareness fund (Kentucky).

In March 1998, Hawaii adopted a bill (House Resolution 16) to study these state measures, report on their effectiveness, and make recommendations to the Hawaii Legislature before the 1999 regular session is convened. Serious consideration should be given to the studyís findings and recommendations before all individuals are presumed to consent to the donation of their organs.