Earlier this year, we posted about people selling their organs. Now we want to talk about people donating their organs. Or more specifically, the state assuming you want to donate your organs unless you’ve let them know otherwise. NYT’s always-thought provoking Room for Debate blog has a piece on a proposed New York law that does two things: (1) Makes it so that family members can no longer override someone’s clear wishes to donate his organs and (2) Assumes everyone wishes to be an organ donor unless they specifically opt out.
Nurse: Just some background and disclosures: I don’t know how the process for organ donation works in New York, but in AZ, any death in hospital gets called in to the donor network– even if we think there’s no way they’re a candidate– and they decide whether to pursue it. The rest I am not really involved in (unless someone who’s brain dead is kept alive in order to preserve organs– but that’s a story for another day. It’s amazing how much goes into it.)
It seems like the first part of NY’s law, which ends the right of family to question/revoke a patient’s own designation as an organ donor, is pretty straightforward, no? I don’t see any real problem with that.
Lawyer: Agreed. I guess the argument against it is that if you’re dead, you can’t possibly care anymore, but your family members might — but seeing as we, as a society, allow people to leave wills, and generally honor them when possible, that provision seems pretty unproblematic to me, too.
Nurse: In terms of the opt-out versus opt-in– i’m usually an opt-in kind of girl. I want to have to check the box that says “please send me special offers” or “you can share my information.” But it seems like the calculus is changed by the fact that organ donation deals with a “greater good” in a way that marketing doesn’t. Is it wrong to assume that each person will make a contribution to saving lives when they themselves are dead? I’d say no, as long as there’s a reliable mechanism to opt out.
Lawyer: I’d tend to agree — we will always have default rules, and it isn’t clear to me that one way is inherently more of a default than the other. We have lots of other regulations about what happens to bodies after death (like where you can’t put them, for instance) — and there are systems for what happens to them if there are no other wishes — tough to say that one particular outcome should be the default for some reason other than a policy judgment.
Nurse: I have always thought, and several of the “panelists” in the NYT article point out, that most people are willing to be organ donors, but they don’t have their lisence with them when they die, their family doesn’t know and is too distraught to really consider it, they didn’t understand the process, or they never felt like checking the box or filling out the form or whatever it took. So we lose some potential donors this way. It also seems like opt-out would make it seem like a more serious choice. People might consider it. If you have to say “no, I will not donate my organs” you are making a deliberate decision in a way that you are not when you don’t check a box or sign a form that says you will. It will kind of tip the indifferent people towards offering something for the greater good.
Lawyer: That’s probably true, but I’m not sure that makes the choice more significant one way or the other. If it’s important to you, then checking the box feels important if the box says “Yes, I will be a donor,” and not checking it feels important if you feel strongly about that. I don’t see how it’s actually different, except that people who are on the fence might not bother to check a box specifically opting out of something if they don’t really care — in which case it wasn’t significant anyway.
Nurse: Of course, in this way, there will no doubt be people who do not want to donate whose organs get used. The same obstacles, like them not having their lisence with them or the family disagreeing, will apply to this opposite scenario. But is error on the side of taking more organs better than error on the side of wasting them? I’d say yes, but then again, I’d want my organs donated. YOU HEAR THAT INTERNET? NURSE IS AN ORGAN DONOR.
Lawyer: Oh, this is really the heart of it, isn’t it? LAWYER IS AN ORGAN DONOR TOO. But not everyone is. I guess I’d have to find some people who object and speak to them to understand the origin of the objection. Is it religious/spiritual? Certainly in some cases it is, in which case I think we should take that very seriously. If it’s more of a sense of ownership or privacy, well, I’d defer somewhat less to that — but I still find it worrisome. Probably more worrisome than “wasting” organs that the person would’ve wanted to donate (because there was no guarantee they could’ve been a donor anyway — depending on manner of death, matches, etc.) In other words, it seems to me thaty ou have an absolute right to NOT be a donor, but no corresponding right to BE a donor.
Nurse: I think one legitimate danger of opt-out is that people need to truly understand what the law is and that they have a right to opt out. There needs to be outreach, and it needs to reach people who are not english-language speakers and who are illiterate. We need to be willing and able to protect individual rights even as we undertake a measure that is in service of the “greater good. “. Now we’ve talked in previous posts about whether you own your body, your organs, and your DNA, so I won’t open that can of worms, but. . . we have individual rights, let’s just go with that.
Lawyer: And I’m really not sure if/how we could accomplish that outreach to a level that would be effective. What could we possibly tie it to? How could we reach everyone who would need to opt out? Driver’s licenses simply won’t do in that context. Would it only be for people over 18? It could be tied, for men, to the selective service — but we can’t tie it to, say, kindergarden registration, or social security cards, because you can’t make that choice when you’re an infant or a 5-year-old. I’m not sure it’s insurmountable, and I’m also not sure it isn’t.
Nurse: One of the panelists, Kieran Healy from Duke, makes what amounts to a ridiculous argument that this law will rekindle fears that surgeons are standing over sick people with hack saws, waiting to harvest their organs, and that they might just take them even if you’re not truly gone. Um. . . won’t those people just sign the opt-out if they are truly so concerned? As Arthur Caplan from Penn (woot woot) points out, most people do want to be donors. Healy also makes no suggestions. Maybe he’s against organ donation all together?
Lawyer: And what’s the source of the idea that doctors have more interest in one patient than in another? What interest does the doctor personally have in harvesting organs, unless the patient is his own kid? I agree. Opt out if that’s your nightmare.
Nurse: Don’t even get me started on Mary Ann Baily from Hastings, who seems to be arguing that organ donation is stupid and never works anyway. She goes into how there are so few suitable donors that this whole hoopla is kind of dumb– to which I have to say, sorry, but. . . doesn’t the small number of suitable donors make it MORE important to capture as many of them as we can? And let’s not just talk about the big-deal hearts and lungs and kidneys– We need corneas, too!
Lawyer: AND, transplantation will never improve if we don’t get to keep doing it. The more we do it, the better we can get at it. I mean, right? Nurse? I don’t really know. I’m just going on intuition here.
Nurse: But she, like Healy, is stuck on the notion that this system will create a culture of fear. People will avoid driving so that they don’t get into car accidents and wind up as organ donors because they didn’t read the form properly! Her suggestions? Well, sure, we can do more to get consent in the current method, we can try to increase people who opt in (we tried that, no?) or here’s my favorite: let’s just develop better technologies to support people with organ failure so that they don’t need a transplant! Wow! I wish I thought of that! Thanks, Mary Ann Baily!
Lawyer: Ayeayeayeayeaye. ::glares north, in the direction of Hastings:: — I’m not sure that even merits a response.
Bottom line? I’m not sure whether I support this or not — but mostly on logistical grounds.
Nurse: I support it. Sure, it’s not perfect, but I think it has the potential to create more good than harm, and the harm is mostly avoidable as long as the person involved cares enough to check the right box. The agruments writen in the article were so much stronger on the pro side that i almost felt sorry for the cons. ALMOST.