Presumed consent? Let's not be presumptuous!
CMAJ 1998;159:135
Dr. Moustarah notes the following important truths about organ donation and organ donors: "[W]e err when we assume that the absence of expressed consent implies a refusal to donate" and "not every person who fails to sign a card is an objector [to organ donation]."
These truths — that some people who would agree to be organ donors fail to sign their donor cards and fail to discuss this important issue with those who might need to make a decision about cadaveric organ donation for them — underscore the need for effective public education about the importance of taking these necessary steps. In Canada, cadaveric organs can only be removed with the prior consent of the donor or the next of kin. And for Moustarah, therein lies the problem.
He believes that public education will not alleviate the shortage of organs and the need for rationing. And so, with the explicit goal of increasing the number of cadaveric organs available for transplantation, he enjoins us to replace the current false assumption about the beliefs and values of nondonors with another equally false assumption — that since a majority support the practice of organ donation we should assume that they want to participate in the practice and want to donate their organs.
This assumption is both seriously flawed and dangerous. For example, it would mean that because most members of society support intensive care units (ICUs) we should presume consent and act on the "unexpressed but autonomous will" of anyone who might medically benefit from this type of care. Moustarah has failed to recognize that even though many practices are "desirable and noble," including transplantation and ICU care, some reasonable, autonomous people will still choose not to participate in them. To suggest that societal approval of a practice can be construed as unexpressed individual autonomous consent to participation in that practice is simply false and borders on tyranny. Furthermore, we need to be particularly wary of arguments suggesting that presumed consent better protects individual autonomy than expressed consent.
Françoise Baylis, PhD
Office of Bioethics Education
and Research
Dalhousie University
Halifax, NS
Francoise.Baylis@dal.ca
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