Sir Liam Donaldson, Britain’s Chief Medical Officer, has recently argued for a change in the consent law relating to organ donation. He is advocating an “opt-out” rather than the current “opt-in” system of making the organs of the recently deceased available for transplant.
The UK is now facing a medical crisis because there are far fewer organs available for transplant than there are people needing them. As a result, many people are dying who would otherwise live were doctors able to extract cadaver organs from people who had not explicitly consented to their removal.
The current legal position, enshrined in the recently implemented Human Tissue Act, makes consent the linchpin. Unless a person (or somebody else legally authorised to do so) explicitly agrees to the removal of his or her organs for transplant, they cannot be used and must therefore, as it were, go to waste.
The Chief Medical Officer wants to presume consent. In practical terms, this means that everybody will be placed on the organ-donor register, unless they specifically ask to be taken off it. In this way, he hopes to increase the supply of transplantable cadaver organs in a similar way to what has happened in countries such as Spain and Sweden, which have already adopted the opt-out system, apparently with great success.
The Chief Medical Officer makes out a powerful case. While a majority (70 per cent) are intellectually committed to organ donation, a minority (20 per cent) are currently on the register. In 2002, 667 people donated organs, 2055 received transplants, and 5615 were awaiting transplants.
It is clear that the scarcity of donor organs is leading to significant numbers of unnecessary deaths. An opt-out system would easily and neatly go some way to solving the problem. This system is distinguishable from a “conscription” system, which would remove the requirement for consent altogether, whereby dead bodies and body parts would automatically become public property, either indefinitely or for a limited period.
Most religions and cultures affirm the inherent value of the body and body parts, even after the people of which they formed part are dead. The continuing importance of people — or those close to them — having a say in how the body is disposed of after death was demonstrated through the Alder Hey and Bristol hospital scandals, where the bodies and body parts of many children were removed, stored, and used without permission.
The issue of consent was a central element in the controversy, which was perhaps the significant force leading to new laws relating to the use of human bodies; in particular, the reinforcement of an opt-in system.
The Christian tradition has, by and large, treated the body with reverence as the “temple of the Holy Spirit” (1 Corinthians 3.16), the place where both God and human personal presence is disclosed. We do not own our bodies in property terms with unfettered rights of disposal.
We hold our bodily lives on trust from God, with responsibility to bring those lives to fruitfulness. There are therefore limits to what we can do with, or allow to be done to, our bodies. It is arguably not open to people to donate organs on which their own lives depend, or to engage is certain forms of consensual but extreme mutilation.
Yet the requirements of creaturely love are also demanding of loving, self-giving self-sacrifice. “No greater love has man than he lay down his life for his friends.” The question is whether organ donation constitutes a responsible form of self-harm. For members of a radical Christian group based in Sydney, the “Jesus Christians”, altruistic organ donation (typically kidneys) is regarded as the ultimate expression of devotion to Jesus. The large scope of Christian neighbourhood happily embraces the gift of a precious organ to a complete stranger.
The misgivings that some Christians may have with a move to an opt-out, let alone a conscription, system is the risk of diminishing that element of gratuitous personal investment in another person that non-commercial organ donation entails. They have a sense of unease about systems that would turn what would otherwise be a gift into an obligation.
Gratuitous organ donation is a striking, visceral expression of one way a person can put the needs of others before his or her own. There are many moving accounts of the personally transformative impact such demonstrations of generosity can have on donor and recipient alike. These would not be possible if an element of compulsion was introduced into the system: opting out requires a decision to remove oneself from the register for reasons which, while they might be understandable, could rarely be construed in morally worthy terms.
Yet there is a danger here, in the face of the incontrovertible need for an increased organ supply, of prizing too highly the principle of respect for individual autonomy which underlies the concept of consent.
In various ways, across the different medico-legal domains, the concerns of our society do set limits to an individual’s freedom of choice. For example, while capable adult patients may refuse all — even life-saving — medical treatment, they may not demand treatment if it is not in their medical best interests. English law reflects the public policy position that medical killing is wrong and subject to a charge of murder, even if patients autonomously request a deliberately hastened death.
Taking into account the needs of others cannot simply be a matter of individual discretion, but is a wider matter about the kind of society to which we wish to belong. The presumptive Good Samaritanism implied by the Chief Medical Officer’s proposal is not inconsistent with a Christian moral ecology. It is an equitable attempt to balance an ethic of solidarity against the ethic of choice so heavily stressed in modern culture. His proposal should be applauded.
The Revd Mark Bratton is Senior Chaplain at the University of Warwick. He teaches medical law and ethics at the University of Warwick Medical School.