Organ Procurement Now: Does the United States Still 'Opt in?'

Abstract

Organ-donation systems are often thought to fall into two categories: opt-in and opt-out. In the United States, the goal of maximizing the pool of donors has led to a patchwork system that has moved beyond its opt-in origins to become a “mixed” system with strong opt-out elements. Even where the system still reflects an opt-in approach, it fails to adequately seek and affirm informed individual choice. This Article explores various procurement strategies and their ethical underpinnings. It concludes that although incremental changes to organ donation laws and policies have improved donation and transplantation rates, they have come at a moral cost. Opt-out strategies have been adopted without public awareness or debate and are impacting end-of-life care and treatment of the deceased body in ways that increasingly raise concern. The final Part of this Article recommends that the U.S. should either re-commit to the opt-in principle and reforms its laws or openly move toward an opt-out system. In the absence of legislative will for either, the Article suggests changes in the way organ donation is promoted and implemented within the current legal structure in order to achieve greater public trust, an important element for maintaining and increasing organ donation rates.

Keywords: organ donation, organ procurement, opt-out, opt-in, presumed consent, deceased body, human organ, transplant, mandated choice, donor registry