Presumed Consent or Opt-Out: What does it mean?

You may have been hearing the term “presumed consent” or “opt-out” lately when it comes to organ and tissue donation around the world. The UK is the most recent country to adopt legislation that supports this.

The United States operates under an opt-in, first-person consent system. This means individuals must personally, actively sign up on the donor registry and, upon doing so, no further authorization is required when the decision of the donor is legally documented.

The Opt-in System is Preferred and Works for Americans

The idea of a presumed consent system may sound logical and the perfect way to address the rising need for organs and tissues for transplant. However, before you start advocating for it, here are a few facts about how a presumed consent system works and why it may not be the best idea for organ and tissue donation in the United States.

No Systems Operate as True Presumed Consent Models

While presumed consent has been enacted in several Western European countries, in practice most of these systems are implemented as family authorization, with families effectively able to override the presumption of consent.

Presumed Consent Removes the Opportunity for Discussion with the Family

Under the current opt-in system, organ procurement organizations have the opportunity to discuss donation with the family of any potential donor. In our area, authorization rates for organ donation are near 90%. An opt-out system would remove that opportunity for family discussion.

Coloradans and Wyomingites Do Not Support a Presumed Consent System

National research commissioned by the Department of Health and Human Services in 2019 found that 34% of respondents would “opt-out” of a presumed consent system if the United States moved to this type of system. This supports local research which found that 62% of Wyoming and 56% of Colorado respondents were opposed to an opt-out system. Many respondents viewed this pronouncement as one deemed by the government, not one of their own choosing. This could spur many to opt out, not wanting to be mandated to be a donor, though not necessarily due to a lack of support or belief in organ and tissue donation.

Presumed Consent is Not in Alignment with American Legal Principles

Generally, laws in our country are built heavily on the core concepts of individual rights and liberties. Presumed consent may be contrary to these fundamental legal principles. Although the idea of presumed consent may sound promising, a change of this magnitude may affect the public’s trust of the organ and tissue donation system. However, it is important to continue to dialogue about this on a regular basis as was done last month at an event hosted by Harvard Law School: “Nudging Organ Donation: Tools to Encourage Organ Availability.”

Opt-out or Presumed Consent Would Not Make More Organs Available for Transplant

Finally, data suggests moving to an opt-out system would not make more organs available for transplant in the U.S. Under our voluntary, opt-in system, more than 70% of Americans who meet the criteria to donate actually become organ donors after their death. This results in about 32 organ donors per million population, which is the fourth highest organ donation rate in the world, including countries with an opt-out system.