Organs, Consent and the State

Until now i’ve held out against writing anything about the ‘opt-in/opt-out’ organ donation debate because, frankly, I had nothing to add. The case for switching to an opt-out system seemed so overwhelmingly strong that - apart from a few thin objections from the usual religious suspects - I hadn’t come across a single argument for not switching to opt-out worth responding to. Then I read Minnette Marrin's comment originally from the Sunday Times of 16th November. Minette Marrin presents what looks like an intellectual case against switching to opt-out. Accordingly, it should be subjected to intellectual scrutiny. Does swithcing to opt-out constitute the state’s owning our bodies and an end to the free society?

We can begin by ignoring Marrin’s thinly veiled references to Stalin and the implication that Brown is putting us on a slippery slope to indiscriminate state massacre. Brown is not - for all his faults - about to impose state socialism, nor is he about to start massacring millions of his own people, whether the donnor system switches to opt-out or otherwise. We can dismiss Marrin’s opening remarks as substance-less (not to mention crass and cheap) demagoguery designed to get her predominantly right-wing readership fired up with some easy remarks about the commies and Brown being a socialist dictator.

So let’s examine the parts of the article which might possess intellectual substance. Firstly, Marrin’s principle objection to opt-out systems - and she states this herself - is an idealogical one, not a practical one. Even if opt-out saves lives, she is still against it. Fair enough, we can say, but in that case she’s going to need some pretty good arguments againt making the switch, as they are going to have justify the possibility of allowing people to die.

Her core claim is this: “The idea [opt-out] lets in an evil and dangerous political principle – the assumption that the state owns our bodies”. That our bodies are our own is, she says, “an essential assumption of freedom and personal autonomy”. Now, putting the pieces together, Marrin’s argument basically goes like this:

1. Individual freedom and autonomy are the basic foundations of a free society, which we desire to live in 2. We cannot have freedom and personal autonomy if we do not own our bodies 3. An opt-out system would mean that we do not own our bodies, because the state would own them 4. THEREFORE: An opt-out system is incompatible with a free society

From this, Marrin is in a position to argue (or as she actually does, imply) that a free society is so important, that it should not be sacrificed even if people die as a result. That is, even if switching to opt-out lead to fewer people dying, it would not be justified because we would have lost the foundation of a free society - and that is more important even than saving lives.

It all sounds very grand and noble, doesn’t? Except that, if we look closely, it’s sheer nonsense. There are lots of things wrong with Marrin’s argument, but to keep matters brief I will focus only on the most pertinent.

An opt-out system along the lines being proposed would not amount to the state owning our bodies for the blindingly obvious reason that it is an opt -out system, not a totalitarian snatch-and-grab system. There remains plenty of free choice. If a person feels sufficiently strongly that they do not want their organs to be used after they have died, they can make that clear to the relevant authorities. If they do not, then it is assumed that they had no objection before dying. Now, family and/or friends will still be asked if they had any unofficial record - e.g. conversation - of the deceased saying they did not wish their organs to be donated. If so, the family (or close friends) would still be able to veto the donating of organs. The reason opt-out is deemed to be a desirable default is because under the present system doctors of the deceased must ask friends and/or family very soon after the terrible news that somebody close to them has died, whether they wish to approve the donation of the deceased’s organs. In many cases, when the deceased was not on the organ donor register, friends and family are reluctant to donate in case the deceased had not wished for this to happen. With presumed consent, the picture changes. The doctors can say “we have no record of their objecting to become donors, do you?” The idea is that this takes the pressure off families and friends at a difficult time. Organs could still be refused, even under a presumed consent system. The difference is that with presumed consent, the apathy or indifference of the deceased can now contribute to saving lives, rather than leading to more death.

When laid out honestly, as above, the idea that an opt-out system is tantamount to the state “owning our bodies” and that it would lead to the end of a free society is sheer, unadulterated, cheap, pseudo-intellectual nonsense. However, Marrin appears to believe she has other, supplementary arguments against switching to opt-out. Unfortunately those don’t stand up any better either, and indeed serve largely only to land her in contradiction.

We can quickly dismiss the scare-tactics of the slipper-slope argument, the warning that if we switch to opt-out, the Organ Gestapo will be at the door chopping off people’s arms and pulling out their eyes to facilitate the Brown Socialist Dystopia of Marrin’s nightmares. Slippery slope arguments are invariably poor and sensationalist, and a little calm reflection shows this again to be the case. There is a world of distance between the organs of dead people - who themselves left no objection to their organs being taken and used, combined with agreement from friends and families - being used to save lives, and the state taking the organs of the living. If the state did take - without consent - the organs of the living then we would certainly have ceased to live in a free society. But to get to the stage where the Organ Gestapo is coming to collect your kidneys on behalf of Fuhrer Brown an awful lot more would have to change in our society than simply moving to opt-out. And there’d be plenty of places along the way at which we could stop and reverse the process. Switching to opt-out in view of the dead will not automatically lead to the harvesting of the living.

Marrin is right that the NHS is grossly inefficient in places - but that is a practical constrain against switching to opt-out (remember, those constraints she said at the start she wasn’t interested in?) It could be true that the NHS is too much of a mess for us to switch to opt-out. But that just means we need to sort out the NHS first, not that there is anything wrong with opt-out itself.

Marrin then makes the startling claim that: “The real reason that people keep dying for lack of life-saving transplants, after 11 years of Labour spending on the NHS, is not that there aren’t enough donors. There are plenty of donors – 14m have signed up. Their organs just aren’t used”. This is the first time i have heard anything of the sort. From every other source I have read there is a chronic under-supply of organs. And even if 14m have signed up, most of them are living so that statistic hardly proves anything. When she writes that

As Tim Statham, chief executive of the National Kidney Federation, explained last week, about 1,500 people die in the UK every day and 400 of them, statistically speaking, have signed the organ donor register. That makes about 800 available kidneys a day, not to mention all their other organs. Wasted. Denied to the living and buried or burnt.

I am not sure this proves anything. From my understanding even if 800 kidneys are made available, given the problems of compatibility between donors and receivers, that’s still not enough. I am extremely dubious of Marrin’s claims that there are enough organs being donated currently, and would like to see them substantiated. I assume that they can’t be, and anyway her claims are straightforwardly contradictory with what she says soon after. Marrin goes onto rail further at the NHS and return to her practical objections, quoting lots of statistics - and then drops in the mysterious line that “The problem is that there is no transplant culture here. Transplants don’t happen.” If that is supposed to refer to a lack of a transplant culture amongst donors, it contradicts what she says mere sentences earlier about there being enough organs. Alternatively, if it is meant to be an indictment of the medical profession, it is pretty galling. If Marrin is seriously suggesting that doctors in this country lack a transplant culture, and are letting harvested organs go to waste because they don’t care about saving lives, as she seems to be, it is difficult to know what to say in reply.

But I will, however, say this. Let’s assume that Marrin is right - and there are good reasons to doubt she is - that there are enough organs, and were the medical profession simply to develop a culture of transplanting and the state to make the process more efficient, then we wouldn’t need to switch to opt-out at all because the present opt-in system would be enough. Let’s assume that’s true (which it seems not to be). Even if it is true, it remains that we should still switch to an opt-out system. I showed above that switching to opt-out does not take away our autonomy or remove the foundations of a free society - that was mere blunder and rhetoric on Marrin’s part. Given that opt-out does not have these consequences, why not move to it in spite of Marrin’s practical objections? If Marrin is right that there are enough organs and it’s merely a problem of efficiency, then we have two choices. Either make the system more efficient, or get more organs so that the inefficiency is compensated for. In either case, lives are saved. The first option - improving efficiency - will take years and billions in funding (assuming Marrin is even right that this would solve the organ shortage problem). The second option - moving to opt-out - would take effect almost overnight, and cost nothing in comparison to the alternative.

As moving to opt-out does in no way undermine the possibility of a free society, and instead carries the probability of saving thousands of people’s lives each year, the arguments against making the switch continue to escape me, Marrin’s not withstanding.