Communitarianism and Presumed Consent

In this article, I will use a case study to advocate for an opt-out organ donation system. While similar case studies and arguments abound, here I will specifically address the Family’s Autonomy argument against such a system, countering it with an argument of my own. Namely, I will adopt a communitarian approach, arguing that since most people favour organ donation, and since evidence has shown that presumed consent increases donation rates and hence the public good, a scheme of presumed consent is justified.

Introduction

Mr. Sim Tee Hua, a 43-year-old crane operator in Singapore, was declared brain dead on Monday, 5 February 2007. On that day, when medical staff at the Singapore General Hospital expressed the intention to procure Mr. Sim’s organs, his relatives requested to delay the decision for 24 hours. The medical staff complied. On Tuesday, Mr. Sim’s family requested another delay, but this time, the medical staff declined. Apparently, Mr. Sim’s family responded violently, requiring the recruitment of police officers and security staff to the scene. Finally, Mr. Sim’s organs were transplanted to three other patients.¹

Similar cases have occurred in countries that implement a system of organ donation based on presumed consent.² This system considers every citizen to be an organ donor de jure, unless he has documented the wish to be exempt from that pool of organ donors, i.e., to opt-out of the pool. Accordingly, under the Human Organ Transplant Act (HOTA), all Singaporean citizens and permanent residents aged 21 and above are organ donors unless otherwise specified (Low et al. 2006).³ De jure should be emphasised, because an important distinction exists between stringent (hard) and lenient (soft) forms of presumed consent: in the latter, the family’s consent is still required for organ procurement. In the stringent form, however, organ procurement will go forward even if the family objects.⁴

Soft systems of presumed consent pose a dilemma: what happens when the patient’s (perceived) will to donate conflicts with the family’s desire to refrain from donating?

The Dilemma

Mr. Sim’s case reflects a recurring contradiction between a patient’s ability to decide according to his will versus the family’s power to overrule the patient’s decision. In the context of presumed consent for organ procurement, several issues arise:

1. 1. Our perception of the patient’s will—to donate his organs—does not represent his will at all, i.e., it is not his autonomous decision. Without an expressed consent, there can be no consent (Etzioni 2003).⁵

2. 2. Government bureaucracy would compound the process, potentially leading at times to a disregard for one’s request to opt-out (Jacob 2006; Etzioni 2003).

3. 3. A procedure of presumed consent might actually reduce rates of organ donation, as families may perceive it as a violation of their civil liberties and familial bonds (Wright 2007; Orentlicher 2009; Etzioni 2003).

4. 4. While a system of presumed consent works well in some countries, it is less effective in other countries since other factors are involved (Wright 2007; Guy and Aldridge 2001; Etzioni 2003; Pierscionek 2008; Coppen et al. 2005).

5. 5. Even if a system of presumed consent reflects and preserves the true autonomy of the patient, the family should have the power to overrule his decision. Therefore, two normative principles come into conflict.⁶

Statements 1–4 express pragmatic and conceptual arguments against an opt-out system. As to 1, the same may be said against a system of expressed consent: given that organ donation is supported by the majority of individuals (Johnson and Goldstein 2003; Abadie and Guy 2004; Dolling 2009; Orentlicher 2009; Rithalia et al. 2009), one might hypothesise that some individuals do not donate because of misconceptions or lack of information (Dolling 2009: 45–7; Rieu 2010). These misconceptions, one might argue, obstruct patients’ autonomy (Orentlicher 2009). Pragmatically, autonomy in either scenarios may be salvaged by improving public education on the subject (Saunders 2012), e.g. by distributing information leaflets in health clinics and supermarkets, by TV commercials, etc.⁷ Conceptually, the claim that consent could...