Presumed Dissent? : Opt-out organ donation and the routine exclusion of organs and tissues

Williams, Nicola and O'Donovan, Laura and Wilkinson, Stephen (2022) Presumed Dissent? : Opt-out organ donation and the routine exclusion of organs and tissues. Medical Law Review, 30 (2). pp. 268-298. ISSN 0967-0742

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Abstract

It is often claimed that a legitimate approach to organ donation is an opt-out system, also known as ‘presumed consent’, ‘deemed consent’, or ‘deemed authorisation’, whereby individuals are presumed or deemed willing to donate at least some of their organs and tissues after death unless they have explicitly refused permission. While sharing a default in favour of donation, such systems differ in several key respects, such as the role and importance assigned to the family members of prospective donors and their preferences, and exclusions and safeguards which often specify the demographic groups, purposes, or organs and tissues which will remain outside the scope of the opt-out system. Using the recent shift to opt-out in England, Scotland, and Northern Ireland as a case study, and by reference to the key goals motivating this shift across the UK, this paper asks whether and, if so, why, and how, opt-out systems for post-mortem organ donation should restrict the types of organs and tissues for which consent is deemed. In other words, ought opt-out systems for post-mortem organ donation presume dissent regarding the donation of certain organs and tissues?