Claudia Carr
Claudia Carr is an author and Senior Lecturer in Medical Law and Ethics in the UK at University of Hertfordshire and can be contacted at c.r.carr@herts.ac.uk
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Today, there are not enough organ donors in the United Kingdom or in Israel to meet the demand of those who are on the Organ Donor waiting list. According to the National Health Service Blood and Transplant Authority, the UK has one of the lowest organ donor rates in Western Europe, with an organ donor ratio of only 18.5 organ donors per million. In contrast, this is far lower than countries such as Norway and Croatia, let alone the United States, which has a ratio of approximately 26.3 deceased organ donors per. Israel has an organ donor rate of 7.4 per million, which is one of the lowest in the developed world. Moreover, recent statistics from the Global
Observatory on Donation and Transplantation (which records the 50 most active countries globally with regards to transplanted organs per million population) reported that the UK ranked 9 th
and
Israel ranked 31 st
in the world in transplants. The rankings may be a few places above Lithuania,
Slovakia and Jordan, but they are below countries such as Iran and Uruguay.
In order to increase the number of available transplants in the UK and Israel, I believe that we should explore the possibility of introducing presumed consent for deceased organ transplants, using the “opt out” legislation in Wales (through the Human Transplantation (Wales) Act 2013) as a model. I would like to consider whether this a way to increase deceased organ donor rates ethically so as to address the lack of available organs for transplant. Wales will be the first nation in the UK to introduce presumed consent in 2015 when the Human Transplantation (Wales) Act
2013 takes effect.
Presumed consent or ‘opt out’
Presumed consent or ‘opt out’ is based on a compelling public policy rationale: Organ donation and transplantation is of such immeasurable value to those on the Organ Donor waiting lists that it should be made the policy that people are presumed to consent to donating their organs upon death, as a default, unless an individual has a clear objection. This policy assumes that organ donation is an ethical ideal which should be placed upon citizens generally, since it represents a sense of reciprocity (who would reject the offer of receiving a much-needed donated organ) as well as communal interdependence and responsibility.
The current position in the UK and in Israel
Currently, both the UK and Israel (as well as many other countries, including the US) have an organ donation policy that requires people to opt-in. In other words, the default position is that people are not presumed to want to donate their organs upon death and therefore those who do must actively volunteer to do so. In the UK, one can sign the Organ Donation Register online, by mail, or by indicating a preference to donate organs on the newer driving license forms. In Israel,

signing an ‘Adi’ card, which is managed by the National Transplant Center and affiliated to the
Ministry of Health, indicates one’s willingness to donate organs after death.
Despite the availability to ‘opt-in’ and despite the fact that public opinion both in the UK and Israel appears to support organ donation, there has been great difficulty in turning people’s good intentions into a reality by taking the active step of signing the Organ Donor Register.
Part of the reluctance in the UK may be due to the lack of education and awareness. The issue of organ donation is not frequently in the media spotlight. When it is, however, there is a great public response. For example, in 2013, the media followed the trauma of a young university student, who was waiting for a heart transplant. Desperately ill, he finally received the news that a heart was available and, following a remarkable recovery, returned to university. As a result of this heartwarming story, the media exposure encouraged an extra 47,000 people to sign the Organ Donation register in just one day. In Israel, there have been campaigns in Hebrew, Arabic and Russian which have led to an increased awareness of the issue, yet they have not been overly successful in raising the number of organ donations.
In 2013, the National Health Service Blood and Transplant Authority in the UK published a document entitled ‘ Taking Organ Transplantation to 2020’.
One of the considerations it proposed was to explore the idea of whether those on the Organ Donor Register should receive higher priority should they need an organ over those who are not registered. Interestingly, this idea was already introduced in Israel in 2008. The Israeli Organ Transplantation Law gives an incentive for potential organ donors, whereby priority would be given to patients who have agreed to act as organ donors in the event that either they or a close relative needs a donated organ. Critics of this policy argue that allocation of organs should be based on clinical need rather than a ‘preferred status.’
A system of presumed consent or ‘opt out’
In February 2014, the Israeli Ministerial Committee for Legislation rejected a bill which would have introduced presumed consent for every Israeli citizen or permanent resident over the age of
18. Nevertheless, I believe that such a bill should be reconsidered based on the Welsh example.
The recently passed Organ Transplantation (Wales) Act 2013 provides that a competent adult over the age of 18 and having lived in Wales for the preceding 12 months, will be deemed to have consented to donate his or her organs upon death. The significance of a requisite residency period is to ensure that new residents have had sufficient exposure to the policy. The Act’s intention is to increase organ donors by 25%.
The Act will take effect after a two-year education and promotion campaign so that the population is fully informed regarding the meaning of presumed consent. Though it is always the case that those who are less educated may be less likely to truly appreciate the importance of opting out, and might therefore have their organs donated against their true wishes, there is an argument (albeit highly unpopular) for enforced donation, which proposes that since we have no need for our organs on death, they should be compulsory obtained on death in order to benefit others.

The value of presumed consent
Organ donation is an altruistic act, as it is a gift from one person to an unknown recipient upon his or her death. Although organ donation is a controversial issue in Jewish law, Rabbi Shaul Israeli
(Donating organs of the dead, consent of the deceased and the position of the family ASSIA 1997;
59-60: 105-7) has written that where a person indicates his or her wish to donate organs upon death, the deceased’s relatives cannot override the deceased’s wishes. Similarly, if the deceased has objected to donating organs, then his or her wishes should be respected. It is the wishes of the person that determines whether organ donation is permissible or not; it is not a question of the ethics of the procedure itself. This point is important, since one of the factors for the low rates of organ donation in the UK is due to deceased’s relatives’ high refusal rate for donation once death has occurred. In fact, Taking Organ Transplantation to 2020 records that the UK has one of the highest family refusal rates for organ donation in the West. Approximately 40% of families refuse donation. Also in Israel, statistics from the National Transplant Center record that 44% of family members of the deceased refuse to donate their organs.
Relatives refuse for a number of reasons, such as the belief that their relatives’ bodies will be mutilated after their death in order to retrieve the organs, the belief that one should not derive benefit from the dead, desecrate the dead, and finally delay burial for the purposes of organ retrieval. However, Rabbi Unterman, the late Chief Rabbi of Israel, stated (Shevet mi-Yehuda,
1955, Jerusalem, pp313-322) that the mitzvah of saving a life
(Pikku’ah Nefesh) overrides the three aforementioned prohibitions. While his statement is highly controversial, it shows the value of organ donation for saving the lives of others. Refusing a patient’s desire to donate his or her organs also ignore if not violates his or her autonomy in making such a choice. Patient autonomy has become a major part of medical ethics, and as long ago as 1914, the courts in the USA recognised that ‘
Every human being of adult years and sound mind has a right to determine what shall be done with his own body’ (Cardozo J, Schoelendorff v New York Hospital (1914) 211 NY 125.
This notion of patient autonomy is now a widely accepted premise in medical ethics around the world.
Would presumed consent fulfil the objective of increasing the number of organ donors?
The most important question is - Is ‘opt out’ the cure-all for increasing organ donation rates? The introduction of presumed consent has had some impressive results in countries around the world.
Spain for example, which adopted presumed consent, has one of the highest rates of organ donors, in the world, currently 35.3 per million population. Countries such as Sweden, France, and Austria have adopted presumed consent and has seen increased numbers of organ donors. On the other hand, Greece introduced presumed consent yet it has been less successful in attracting organ donors and lags behind many other countries which have retained opt in. Moreover, there are also been some notable failures regarding the introduction of presumed consent. Brazil, for example introduced presumed consent but, due to a climate of distrust, the number of people opting out was so high that the legislation was repealed the following year. Clearly, there is more to increasing organ donations than presumed consent, but in general the ‘opt-in’ strategy has shown to be productive.
Conclusion

It is by no means certain that presumed consent will increase organ donor numbers in Wales (let alone the UK or Israel). Yet, there is a clear potential that, with significant investment in education, together with improved infrastructure and appropriate databases, presumed consent would increase deceased organ donors. It is essential that the legislation in Wales and elsewhere instils confidence and trust between potential donors and the medical profession.
Presumed consent respects a person’s autonomy by allowing an avenue for those who object to organ donation to do so. Presumed consent should therefore be considered as a positive step forward towards increasing the number of organ donors. We should encourage and nurture our commitment to society and recognise that presumed consent in organ donation allows others to benefit after our death. For this reason, I believe that we should take a closer look at presumed consent as a default position in the UK and Israel, as well as in other countries around the world.