Today (2/6/13) the devolved parliament of Wales will debate moving to an opt-out organ donor register. It is highly likely to vote in favour of the measure. If so there will follow a two year program of publicity before the measure is finally introduced. it appears that various initiatives surrounding organ donation, many recommended in a 2008 report by the UK's Independent Organ Donation Taskforce, have seen a rise in postmortem donation rates across the UK. I would expect this programme of publicity to provoke a further increase not only in donation rates but also in the number of individuals who register their wish to be a postmortem organ donor.
When surveyed, the majority of UK citizens report a willingness to be a postmortem organ donor [.pdf]. Unfortunately this percentage is not reflected in the number of citizen’s who sign the existing organ donor register. This fact is used to justify both asking the family of an unregistered potential donor for their views and for moving to an opt-out system of registration. However any opt-out system of registration adopted in the UK will be a so-called ‘soft’ opt-out system. Whilst an opt-out register will permit the registration of positive and negative views the family of any potential donors who has not registered a view will be consulted and, in practice, will have a large, and possibly determinate, say in the matter.
It seems to me that the following describes the current UK-wide system: one can register a positive view; one cannot register a negative view; and whilst no explicit assumption’s are made regarding unregistered donors their families are asked for the views of the unregistered individual. Whilst it would be wrong to say that current practices attempt to persuade the families of potential donors who are unregistered to give their consent – the view of the family or their consent is not the ‘real’ issue although, in practice, it may play an important role – current practices are rightly organized to, for example, communicate the existing approval rates for organ donation.
It also seems to me that the following describes a ‘soft’ opt-out donor register: one can register a positive view; one can register a negative view; and whilst there is an assumption that unregistered donors are willing to be organ donors their families will still be asked for the views of the unregistered individual. Whilst we can debate the degree of objection a family must raise in order for the presumed consent of unregistered individuals to be overridden it does not seem to me that the required degree of objection will be any more or less than is currently the case.
As recommended in a report by the Nuffield Council on Bioethics, the organ donor register needs to be reformed. At minimum it ought to enable the registration of a negative view; to register an individual's desire not to be a postmortem organ donor. If such a change was made it seems difficult to see what precise and practical difference a ‘soft’ opt-out organ donor register will make. In cases of unregistered individuals the views of the family will remain the primary factor in whether or not such individuals do, in fact, become donors.
Certainly the Welsh proposal will result in an increased awareness of organ donation and such awareness will likely increase the number of postmortem donors and the number of individuals who sign the existing opt-in register. However such publicity and awareness raising efforts can (and should) be pursued in any event. One might argue that an opt-out system of registration increases the burden on nation states to raise awareness of the organ donor register and, therefore, organ donation itself. Nevertheless, opt-in or opt-out, the basic moral imperative to promote donation remains. If my description of what will happen under a soft opt-out system of registration is correct then it would seem to match what would happen if the organ donor register was reconstituted along the lines I, and others, have argued for. It seems to me that increased publicity and improved practices of procurement (donor identification, engagement with families) are the ways in which we can increase donation rates. If so, then the arguments against such a policy (change in relationship between citizen and state; lack of positive consent; and endangering the notion of the ‘gift of life’) might be considered to have the greater force.
If the benefits of an opt-out donor register cannot be distinguished from effects of the associated publicity then there can be no moral case for pursuing such a policy.