“Presumed Consent” - A Harvest of Organs
I just watched an interesting episode of Law and Order: SVU in which the topic of presumed consent was introduced. I, before watching this episode, had never been aware of presumed consent and I found it great to hear both sides of the argument in a dramatised way. So, let’s first look at the definition of presumed consent:
Presumed consent is alternatively known as an 'opt-out' system and means that unless the deceased has expressed a wish in life not to be an organ donor then consent will be assumed.
- U.S. National Institutes of Health's National Library of Medicine
What this means, in practice, is that unless explicitly stated otherwise by the patient or their medical proxy (power of attorney), a doctor has the medical and legal right to harvest a patients’ organs for others to receive. This practice can be found in several countries, especially European ones, including Austria, Belgium, the Czech Republic, Finland, France, Greece, Hungary, Israel, Italy, Luxembourg, Norway, Poland, Slovenia, Spain, Sweden and Turkey, according to the World Health Organisation.
Now, the case I was watching on SVU was that of a paediatric surgeon removing the heart, lungs, and liver of a young girl who had died from a brain injury, resulting in her brain being dead, but her organs were still alive. The doctor, not being told explicitly not to harvest the organs, made the medical decision to remove the girl’s organs. Just before the transport carrying her heart was to leave, the surgery was discovered and Lieutenant Benson had to intervene, as the parents had not consented.
Throughout the trial, and before when Benson asked the parents if the transport could leave anyway, even though the parents had not initially consented, the argument that the child’s organs had been ripped out of her body without the parents’ consent was made, in a time of great distraught over losing their child, and it was wrong and the doctor should be punished by the law. The doctor responded in a Thoreauvian way, explaining that a law that is wrong should not be followed. Furthermore, she cited the ethics and morality of this issue in which she had outweighed the plurality of the law in her state. She cited that many European countries use this practice.
The ADA, in this case, sympathised with the parents because he had recently lost his father, and he told Benson that he was getting Half-and-Half when his father passed away, and the discovery of his organs being harvested while he was gone would have affected him greatly. Benson, having a young child herself, a son, sympathised with the child about to receive this heart that was intercepted. In the end, they are informed that the child who would have received this patient’s heart dies. The defendant’s attorney cites the rarity of paediatric organs and several agree that the surgeon should be commended as a hero, not condemned as a criminal. In the end, the court finds her guilty on 30 felony charges, as she forged consent forms due to the legality of the crime, and as forgery is a felony, the surgeon’s medical license is revoked.
I wanted to look at two things in this: (1) the legal and ethical implications of presumed consent, and (2) the selfishness of keeping organs, especially by parents.
Upon further research and study on the issue of presumed consent, I find it so that the idea and legalisation of presumed consent outweigh the implications of non-consensual organ harvesting. Organ harvesting, obviously, is a very time specific thing. There is no time to wait or to let parents or proxies decide to donate or not when other’s lives depend on that organ. The surgeon in this fictional case points out that having lost a son herself, the idea of asking a grief-stricken parent these questions is unfathomable. Instead, the law acts on a “act now, ask for forgiveness later” kind of deal. Unless a parent/proxy or patient says, “I do not want to give mine/their organs away for x, y, z,” then the doctor can presume consent of that patient to undergo this procedure. Having such a law saves more lives, and this value has been seen in countries where this law is implemented.
To the Thoreauvian point made by the doctor in this case, I find it very commendable and a very different look at civil disobedience. It follows the same principles as civil disobedience, and I do see that it is a moral and just cause, which is why this type of practice could make it to the Supreme Court in accordance to potentially overturn state decisions to prosecute such an action. And to the argument of selling organs, well I can delve more into that at a potential later date, but you know my position on for-profit healthcare, so that would have to be a no for me.
The second thing I mentioned was the selfishness of not donating organs. I will put aside the religious reasons of not donating organs, and focus solely on the secular. First, let me start off with this case. The parents told Lieutenant Benson, upon being asked if the heart transplant could continue, that they (specifically the mother) were not comfortable with having pieces of their daughter missing. I practically screamed at my television throughout the episode as they kept bringing this issue up. Like Fin, a detective in the show, said, “Dead is Dead.” There is no logical reason to not donating your organs after you are deceased. Coming from personal experience, my grandfather was on a kidney transplant list and was very grateful to have a direct donor, a co-worker of my grandmother’s (who happens to be an ER doctor). If not, there was a possibility of dying while waiting for one. There are so many deaths in this country every day, but many of them do not donate their organs. As they pointed out in the show, practically no parent of a paediatric patient consents to this process, which is sad due to the amount of necessity amongst paediatric transplants.
This case seems pretty sensible to me that presumed consent is appropriate and beneficial to the greater good. I am a left-Libertarian, but I also am a strong believer in Rawlsianism, so I have no fear in “taking away” personal rights that do not infringe on the daily life of a person and in the end help someone else and better the lives of the needy. I do not stick to one simple principle when looking at government and economics. I do not think that taking the organs from a person who is dead is wrong, nor does it infringe on their personal rights, again setting aside religious reasons, not because I believe the principle changes, but because I do not wish to currently argue that position. I think it is selfish that more people do not donate in this country, and if they do not explicitly say no, then there should be no reason why that shouldn’t be a yes.
