Who owns your organs – you or the state?

The system of presumed consent on organ donation dilutes our moral autonomy.

Who owns your organs? It sounds like a crazy question. It seems obvious that a person’s heart or lungs or liver can belong to no one but himself, by virtue of the fact that they are inside his body and cannot be touched, far less removed, by another person, except through either a consensual medical procedure or a terrible act of criminal violence. Ownership over our organs seems more natural and taken-for-granted than our ownership of anything else. Where our material stuff, like a TV or a car, can be lost, stolen or casually passed on to a friend, our organic matter – say, our hearts – cannot be. To most people, the question of who owns their organs is unlikely even to cross their minds – an individual owns his organs, of course.

Well, not so fast. If certain charities and officials have their way, Britain may soon move towards a system of ‘presumed consent’ for organ donation. That is, the medical authorities will assume that unless a person has actively opted out of organ donation, unless he has explicitly said ‘Don’t extract or use my organs post-mortem’, then when he dies his organs belong effectively to the state and can be transplanted by doctors into their patients. This system has already been nodded through in Wales, where from December 2015 the Human Transplantation (Wales) Act will stipulate that every Welsh person is presumed to have consented to the extraction of his organs after death. Many want a similar system enforced across the UK. The issue of presumed consent is back in the news this week after the Cystic Fibrosis Trust, which is understandably concerned about the need for healthy lungs to transplant into sufferers from cystic fibrosis, called for ‘a change in the organ donation law to a system of presumed consent’.

The system of presumed consent calls into question that most basic idea that an individual owns his organs and has dominion over his own body. In simply, and some would say arrogantly, presuming that a man’s heart or a woman’s lungs may be taken by the authorities after death, the policy of presumed consent doesn’t only interfere with what happens to our bodies once we die – it also sends a powerful message about our bodily and moral autonomy right now, while we are still alive. It effectively turns us into incubators of organs for the state, whose heart, say, is not simply the beating centre of our personhood but is also something which it is presumed the state has a right to take and to use as it sees fit post-mortem. It waters down, for real, our living autonomy and our bodily integrity.

It is true that there are some serious problems with the organ donation system in the UK. Two thirds of Britons say they would like to donate their organs after death, but only 31 per cent have actively registered as organ donors. Britain’s donor list is growing more slowly than the waiting list for transplants, which, according to one NHS official, has ‘soared’. The director of organ donation and transplantation for the NHS, Sally Johnson, has said ‘there is only a limited amount more the NHS can do to offer hope to those on the waiting list’ without a ‘transformation in donor and family consent’. The crisis of donation has led many observers to support a nationwide shift to presumed consent, on the basis that it would overturn ‘the status quo of saying “no”’ and ‘force people to really think about what organ donation means’.

But therein lies the problem – the idea that people must be forced to talk about organ donation, and in essence be forced to become donors. There are two big issues with the system of presumed consent. The first is that, in common with officialdom’s passion for nudging these days, where new schemes and policies are dreamt up to try to ‘nudge’ the little people towards behaving more responsibly and eating more healthily, the system of presumed consent circumvents rational, open public debate about the social importance of organ donation in favour of just presuming we are all for it (and hoping that those people who aren’t will not have noticed that their organs will nonetheless be removed after death, whether they like it or not). This is the most regressive thing about today’s nudge industry, which has replaced the so-called nanny state as the main purveyor of policies for correcting the masses’ allegedly bad behaviour and backward ideas: its assumption that public debate about things such as healthy eating or boozing or bike-riding is unnecessary – and potentially problematic, given that the pesky public has varying views on these matters – and instead officialdom should just devise mechanisms that unilaterally override our bad choices and effectively force us to walk more (by pedestrianising more of our cities), to drink less fizzy pop (by banning big cups), and so on. It is its presumption that the public is not rational, is not open to being convinced, to being won over to a new suggested form of social organisation, that makes the nudge lobby so annoying.

The nudgers’ prejudices about the public, and their undemocratic urge to override our alleged idiocy rather than engage with us to see if they can convince us of their viewpoint, are writ large in the policy of presumed consent. What we have here is a policy that exposes the elite’s view of citizens as fundamentally thoughtless creatures who are not susceptible to rational and upfront engagement; a policy which, like so much of today’s top-down nudging antics, treats adults as children who must be surreptitiously prodded into doing the right thing in lieu of having enough brain cells to understand what the right thing to do is.

The presumed consent system is explicitly about refusing to have an honest debate about the social benefits of organ donation. Those benefits are great and important. They should be communicated to the public, and the public should be trusted to make up their minds about whether those social benefits outweigh their own personal fears or beliefs about organ donation. I imagine that most people, though certainly not all, would accept that organ donation is a good and decent thing. Yet rather than try to drum up such social enthusiasm and solidarity, which is a hard thing to do, modern elites prefer to agree among their own tiny retinue that everyone’s organs are up for grabs. It is their policy that is anti-social, since it is designed precisely to avoid meaningful engagement with the public in favour of reducing us all to individual carriers of presumed-to-be state-owned organs. The Archbishop of Wales had a point last year when he said the new Welsh system turned organ donation from ‘a gift of love, of generosity’ into just ‘a medical use of a body’.

And the second problem with presumed consent is what it does to our moral autonomy. It dilutes it. The real presumption being made here is that no one in their right mind would say to the state, ‘No, you may not interfere with my body when I die’. How have the authorities become so confident of their right to presume our acquiescence to their medical ventures? Because they have intruded on our moral autonomy a great many times in recent years, most notably in the name of public health, and there has been very little protest about it. They have presumed the authority to tell parents how to raise and feed their kids; they have presumed that no one will bat an eyelid when more public areas are made smoke-free; and now they presume that our organs become their property as soon as we die.

That’s enough presumption. Our organs, our bodies, our homes, our private lives are our own, and you should stop intruding into them, both now and in the future. If you would like us to donate - ‘the act of giving a gift’: OED - our organs, which is a very noble thing to do, then convince us to do it; explain to us why we should it; and then let us decide whether or not to do it. If you don’t try to do that, and instead pass a law saying everyone’s body is yours unless they actively opt out, then we have every right to presume that you don’t trust us - which raises the question of why we should trust you, with our organs or anything else.

Brendan O’Neill is editor of spiked.

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