'Opt-out' is not a major change

By Anthony Warrens, November 16, 2012

Last week, the JC featured a debate about the proposed introduction in Wales of an "opt-out" system in organ donation. In the UK, three people die every day waiting for an organ that could restore both their life expectancy and quality of life. More than 90 per cent of the population have said they would want to be a donor - but only a fraction ever get round to signing up to the register. In the current "opt-in" system, the onus is to determine if the potential donor would have given consent; in the proposed system, the assumption is that the person who has died would like to see others live as a result of their final act of generosity.

This may seem like a monumental shift in policy, in which the state makes assumptions about consent. In reality, it would make few differences on the ground. The deceased's relatives would still be asked about their loved-one's attitude to donation. This is what happens today and, as such, represents no change whatsoever: they would be asked if they knew whether their loved one would have wished to have withheld consent rather than, as now, if they would have granted it.

What is being proposed in Wales is the so-called "soft opt-out", in which the family's assertion that their loved one would have withheld consent will be taken as enough to override the "opt-out" assumption. Any other position would be quite unacceptable in the UK. I believe there is not a surgeon in the land who would proceed with donation in the face of opposition by the family. No one is advocating this.

Similarly, the concern that organ storage represents a challenge in Jewish law is not a practical issue. It is voiced by those who believe that permission to take organs from a deceased person to save a life applies only if the potential recipient is immediately available. Sadly, there is no shortage of those at risk of imminent death on the waiting lists, and the recipient has often been established even before the organs are removed. It is not medically possible to store organs for more than a few hours. So the requirement for immediate use is clearly met.

With regard to the opt-out proposals, if the engagement with relatives is to be retained, it explains why many health-care professionals do not feel "opting out" is worth promoting. So why is anyone bothering to pursue it? I think this is to do with attitudes. Ideally, everyone should be entitled to total autonomy and self-determination without society making any assumptions. But, as John Donne put it, "no man is an island". This relates to the talmudic doctrine of the mutual responsibility of Jews (kol Yisrael arevim ze bazeh).

Every day three people die waiting for an organ

One section of rabbinic opinion has concerns about defining death using brain-stem death criteria (although others, of unimpeachable authority, fully accept this definition) and there is rabbinic unanimity on the permissibility of donating organs after death defined by cessation of the circulation. Given the urgency and immediacy of the threat to life, it is critical that this debate be conducted in an informed and sympathetic fashion.

I sense that wider society's patience is growing thin. Increasingly, colleagues talk about "free riders" - people who will take organs if they are ill but would not have considered being a donor. There is much debate over proposals that the UK move towards an approach where priority for an organ transplant is given to those potential recipients who have previously expressed willingness to be donors. If this does happen, we would be following the only country in the world that has adopted such a system - Israel.

Professor Anthony Warrens is president-elect of the British Transplantation Society

Last updated: 10:19am, November 16 2012