Presumed Consent in Organ Donation: A YU Perspective

By: Rachel Retter  |  November 14, 2018

By Rachel Retter

At Yeshiva University, concern for public health and commitment to halacha combine to form a complex perspective on a hot-button issue: organ donation.  

On October 15th, the Medical Ethics Society (MES) hosted 40 students for a round-table discussion on recent developments in organ donation. Split into student-run groups and armed with an array of sources, MES club members delved into different facets of organ donation, including its halachic limitations, the global and local legal status of organs, and some potential strategies to address the overwhelming organ shortage in the US. The MES lecturers spoke a great deal about how the globally accepted “opt-out” policy compared to the US-instituted “opt-in” policy. While the “opt-out” policy requires people to actively “opt-out” and choose to not to be organ donors, the “opt-in” policy requires participants to actively “opt-in” and choose to be organ donors. The difference between the two policies lies in the default assumption of consent to donate organs post-mortem. The “opt-out” method has become a recent global trend and has proven dramatically effective in increasing organ donation rates in many countries, including Spain, Austria, and Belgium.

America currently employs the “opt-in” system, encouraging residents to actively choose to become organ donors. Unfortunately, America’s organ donation rates rank low on the international scale, particularly compared to those countries with an “opt-out” policy. This has real life-threatening implications. According to the United Network for Organ Sharing (UNOS), every ten minutes, someone is added to the national transplant waiting list, and on average, 20 people each day die waiting for a transplant.

Even more striking: America’s low organ donation rates do not reflect how Americans feel about this issue. According to the US Department of Health and Human Services, 95 percent of Americans agree with the concept of post-mortem organ donation, while comparatively only 54 percent are actually registered as organ donors.

Students discussed this discrepancy at the event, some suggesting that it is simply an issue of the extra steps required to opt-in. While people may be willing to donate their organs on principle, they may not feel strongly enough about it to actually fill out the forms required to register as a donor. Compounding this is the fact that people don’t like to think about their own mortality, and may push off making these decisions just like they may not like take care of the arrangements for their funerals, or write their own wills.

Indeed, when asked afterward about her thoughts on America instituting an opt-out policy, Bailey Frohlich, Vice President of MES, cited this phenomenon in her answer. “It doesn’t make sense for us to have an opt-in policy. If someone was morally or religiously opposed, they would be active about opting out. But people who weren’t opposed wouldn’t [necessarily] opt-in.”

Social psychologists expand on the downsides of an opt-in policy, explaining that when the default of a country is to not donate organs, it creates a culture where donating organs is not within people’s scope of “normal.” In a study published on PNAS, researchers Davidai, Gilovich, and Ross found that participants in Germany, which has an opt-in policy, considered that act of donating one’s organs post-mortem to be “relatively meaningful and substantial,” comparing it to extraordinary acts of altruism such as “working overtime without compensation” or “giving 20 percent of one’s annual income to charity.” On the other hand, participants in Austria, which has an opt-out policy, considered the same act to be “relatively lacking in meaning and rather insubstantial,” and compared it to reasonable expectations such as “fulfilling one’s duties at work or giving 2% of one’s annual income to charity.” Instituting an opt-out policy could help create a culture in America where being a registered donor is the norm, and make it more common.

However, some students expressed hesitations with the idea of instituting an “opt-out policy” in America, for different reasons. Elianna Sharvit, SCW ‘20, who led the discussion concerning the legal status of organs in America, shared concerns about the practical legal implications of the policy. “From a public health perspective, an opt-out policy could significantly increase transplantation rates, saving thousands of lives each year. However, in practice, such a policy would be incredibly difficult to implement in a way which would not exploit any groups and would fairly respect the constitutional rights of all citizens [like Jews who might have halachic hesitations about donations].”

Another student who wished to remain anonymous also expressed wariness in instituting an opt-out policy in the US. She was concerned that just like the statistics reflect the fact that people who on principle support organ donation sometimes neglect to opt in, some people who were religiously or morally opposed to donating their organs might neglect to opt out. As discussed during the event, there are numerous halachic limitations in the realm of post-mortem organ donations. The possibility of a Jew neglecting to opt out, and having his organs harvested post-mortem in a way that was antithetical to his religious beliefs, is something that should not be taken lightly.  

The implications of this policy span many realms, including that of medicine, psychology, law, and halacha. This event provided a forum for these multiple perspectives to converge, in the form of respectful, informative, and meaningful discussion.