Would Presuming Consent to Organ Donation Gain Us Anything but Trouble

Organ donation is often in the news, ranging from the considerable media attention following the death and subsequent donation by Australian actress Natasha Richardson to the saga of Toronto baby Kaylee Wallace and the (ultimately moot) debate over whether to donate her organs to a fellow infant patient. first long-distance kidney swap also made national headlines in June 2009. Reform of the donation system also has a way of capturing attention. Gordon Brown's attempts to implement presumed in Great Britain received consistent media coverage. (1) As the finishing touches are being added to this article, Wales is now considering the merits of changing its system to presumed consent. (2) When organ donation is discussed, current donation system is often portrayed in less than favorable light. Often times, such articles include calls for reform of our organ donation system, sometimes focused on instigating presumed consent. For instance, a recent editorial in the Calgary Herald suggests the following after a discussion of Baby Kaylee's circumstances: One solution may be to follow Spain's example and assume that the organs of anyone who dies will be transplanted unless otherwise specified in advance. This would provide a larger supply of donor organs and help reduce the possibility of a scenario like that at Sick Kids [Hospital] recurring. (3) An older headline from the Edmonton Journal reading Canada's organ-donation rate among world's worst provides less specific criticism in a much more direct manner. (4) Is system of organ donation really that bad? Is changing our system necessary for boosting our donation levels? Do we really have an unacceptably low organ donation rate? I argue that the answer to all these questions is no. This paper will attempt to defend current donation organ system. While both live and cadaveric donation are important factors to consider in this context, this paper will only take issue with the system for post mortem cadaveric organ donation. (5) Specifically, I intend to argue that (1) rate of organ donation is not as bad as portrayed, (2) presumptions regarding have limited impact on donation rates and (3) legal, political and practical factors in Canada favor the retention of our current explicit system. What is Explicit Consent vs. Presumed Consent? Current System of Explicit Consent to Cadaveric Organ Donation Organ donation legislation is within provincial jurisdiction and, as a result, there are a variety of different legislative approaches. Despite differences, however, all provinces operate on an consent (or opt in) basis. In an express model, organ donation can only occur after a potential donor has expressly consented (through registration in a donor registry, oral direction or written direction) to the removal of their organs after death. If the donor does not before their death, a surrogate decision maker is generally appointed by legislation to decide for the potential donor. Surrogate decision makers are selected in order of legislative priority, with non-estranged spouses at the top and a non-family member lawfully possessing a donor's corpse at the bottom. The key feature in an express system is that, without some positive (from the donor or surrogate decision maker), the donor will be presumed not to have consented and no organs will be removed. While a donor's to have their organs removed for transplant following death is legally binding and sufficient to authorize the harvesting of those organs, (6) in practice a potential donor's family effectively possesses a veto. Hospitals or transplant agency staff will, if a potential donor has family, request the family's permission even if the donor has already recorded consent. …

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