A Bill to Create an Opt-Out Organ Donation System

Background: According to the American Transplant Foundation, 18 people die every day in the
United States for want of an organ transplant, and some 122,344 people are waiting for a donated
organ. This bill wants to implement an “opt-out” system, which treats everyone as a willing donor
unless they specifically exempt themselves.

AFF

1. People need organ donations

The Atlantic, November 2014. http://www.theatlantic.com/health/archive/2014/11/why-dont-people-

want-to-donate-their-organs/382297/

But thousands of people aren’t as lucky. In the United States alone, 21 people die everyday waiting
for an organ transplant. Though about 45 percent of American adults are registered organ donors, it
varies widely by state. More than 80 percent of adults in Alaska were registered donors in 2012,
compared to only 12.7 percent in New York, for example. In New York alone, there are more than
10,000 people currently waiting for organ transplants. According to data compiled by the Organ
Procurement and Transplantation Network, more than 500 people died in New York last year,
waiting for an organ to become available.

2. More donations

The Impact of Presumed Consent Legislation on Cadaveric Organ Donation: A Cross Country Study. Harvard
University, December 2005.
https://www.hks.harvard.edu/fs/aabadie/pconsent.pdf

In this article, we argue that legislative defaults on organ donation may affect the consent decisions
of the families, even if they are not enforced. First, we use a simple model to illustrate how
presumed consent laws may affect organ donation rates. In addition, using a panel of countries, we
show that, once other determinants of organ donation are accounted for, cadaveric donation rates
are 25% to 30% higher on average in presumed consent countries. The magnitude of this estimate
does not vary much across the different specifications of our empirical model. Furthermore, using
the panel structure of our data we are able to reject the presence of additive fixed effects.

3. No violation of choice

CNN, December 2015. http://www.cnn.com/2015/12/28/opinions/hill-organ-donor-rules/

Yet presumed consent is not taking away anyone's choice. Quite the opposite -- an opt-out policy
raises awareness and forces people to make tough decisions. If 9-in-10 people support organ
donation, an opt-out policy is surely the most efficient way to ensure that Americans are having
their wish granted when they can no longer speak for themselves.
NEG

1. Alternative: mandated choice

Thaler, Richard H. NY Times, September 2009.

http://www.nytimes.com/2009/09/27/business/economy/27view.html?_r=0

Fortunately, there is another possibility, called “mandated choice,” under which people must
indicate their preference. In Illinois, where I live, this system has been in use since 2006 and doesn’t
seem to have ruffled many feathers.

Here is how it works: When you go to renew your driver’s license and update your photograph, you
are required to answer this question: “Do you wish to be an organ donor?” The state now has a 60
percent donor signup rate, according to Donate Life Illinois, a coalition of agencies. That is much
higher than the national rate of 38 percent reported by Donate Life America

The Illinois system has another advantage. There can be legal conflicts over whether registering
intent is enough to qualify you as an organ donor or whether a doctor must still ask your family’s
permission. In France, for example, although there is technically a presumed-consent law, in
practice doctors still seek relatives’ approval. In Illinois, the First-Person Consent Law, which
created this system, makes one’s wishes to be a donor legally binding. Thus, mandated choice may
achieve a higher rate of donations than presumed consent, and avoid upsetting those who object to
presumed consent for whatever reasons. This is a winning combination.

2. Ethical questions

Presumed Consent Not Answer to Solving Organ Shortage in U.S., Researchers Say. Johns Hopkins Medicine,
November 2011.
http://www.hopkinsmedicine.org/news/media/releases/presumed_consent_not_answer_to_solving_organ_s
hortage_in_us_researchers_say

“Opt-out is not the magic bullet; it will not be the magic answer we have been looking for,” says
Dorry L. Segev, M.D., Ph.D., an associate professor of surgery at the Johns Hopkins University School
of Medicine and leader of the study published online in the journal Transplantation. “With opt-out
the perception becomes, We will take your organs unless you take the time to fill out a form. That’s
a dangerous perception to have. We only want to use donated organs from people who intended to
donate.” Enforcing an opt-out policy raises tricky ethical questions and could challenge the
relationship between the transplant community and the general public, which should be mutually
supportive, Segev adds.

Segev and his team conducted in-depth interviews with transplant experts in 13 European nations
with presumed consent legislation. They found that, despite the laws, the process of organ donation
in those countries does not differ dramatically from the process in countries, such as the United
States, that require explicit consent. They also found that the United States ranked third among the
nations surveyed in rates of organ donation from the deceased, with 26.3 deceased donors per
million population. Only Spain (34.1) and Portugal (26.7) did better.

3. Completely ignores family relations

The Hill, March 2016. http://thehill.com/blogs/congress-blog/healthcare/271514-should-organ-

donation-be-an-opt-out

Yet, upon closer examination, opt-out policies are not a panacea. Many countries with these
policies, such as Sweden and Greece, have lower rates of organ donation than the U.S. Spain, with
the highest rates of organ donation in the world, saw an increase in donation not when it instituted
presumed consent in 1979 but a decade later, when it remade its transplant infrastructure and
placed transplant coordinators at every hospital. Despite the policy differences between Spain and
the U.S., both countries defer to families of the deceased for the final word on whether an organ is
donated. This is the case in many, though not all, countries with presumed consent. Regardless of
the policy chosen, improving family refusal rates is key. This means building trust between families
and hospitals, improving public perception of donation and getting more people to document their
donation preferences

4. Main reason people don’t donate is that they don’t trust doctors. Bill does….ll. nothing to solve for
credibility

The Atlantic, November 2014. http://www.theatlantic.com/health/archive/2014/11/why-dont-people-

want-to-donate-their-organs/382297/

In a recent literature review, researchers at the University of Geneva examined several social and
psychological reasons why people choose not to donate, either by not registering as an organ donor
during their lives, or electing not to donate the organs of their next of kin.

The study cites mistrust in the medical field and lack of understanding about brain death as major
barriers to donation. A 2002 study in Australia, for example, illustrates the controversy
surrounding brain death. Some participants indicated that they wouldn’t donate the organs of their
next of kin if his or her heart were still beating, even if they were proclaimed brain-dead.
Studies have also shown that the less people trust medical professionals, the less likely they are to
donate. The mistrust can come from personal experience—one study in New York showed, for
example, that next of kin who perceived a lower quality of care during a loved one’s final days were
less likely to consent to donation—or from misconceptions about how the medical community
treats registered organ donors.

5. Other countries are successful because they have a good system in place already.

The Atlantic, November 2014. http://www.theatlantic.com/health/archive/2014/11/why-dont-people-

want-to-donate-their-organs/382297/
But beyond being a political and bureaucratic nightmare to actually make happen, changing the
American system to an opt-out system might not fix the problem.
“The Spanish model is held up as the ideal, and in many ways it is,” says Eamonn Ferguson, a
professor of health psychology at the University of Nottingham and one of the researchers on the
study. “They have an opt-out system, but they also have a very coordinated, hierarchical,
interlinked system of well-trained organ-transplant professionals.” Adding to the complexity of the
issue is the fact that the rate of live organ donations is lower in countries with opt-out systems.