Presumed Consent for Organ Donors and Liberty

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I recently had a Facebook conversation with the leader of Canada’s Libertarian Party, Tim Moen, who cautioned me that the majority of libertarians would react negatively to a presumption of consent for organ donation.

Suspicious, I conducted a poll on the Being Libertarian-Canada page. He was right. It was a lopsided victory for those opposed to presumed consent.

My reasoning was the following: We must either presume consent for organ donation or presume an objection to it. One of these presumptions saves lives and the other does not. One of these does good, the other does nothing. Thus, the good choice would be the option that does good.

I attempted to cut through the vitriol in the comments section and study the actual objections individuals were raising. There were three common issues: Religious objections, property rights, and how presumed consent would impact end-of-life care given that their deaths would result in something beneficial to society.

The objections from religion held little sway. No one should be compelled to abandon their religious beliefs and if they wish to disallow their organs for donation on religious grounds, so be it. However, their religious practices cannot be the foundation for national health policy, without a gross conflation of natural and divine law.

The argument from property rights was fascinating to me. The individual doesn’t own the organs, as the individual no longer exists. The organs also do not belong to the next of kin, as the organs do not exist unless they are made use of immediately. Thus, taking them isn’t taking property from anyone.

We treat the dead differently from the living. If a man dies in his home, we don’t ignore it. We commit acts that would otherwise be breaking and entering. Sometimes, we even burn the poor fellow to ashes. We don’t leave them alone, concerned that we don’t have their consent to make any alterations.

Property rights expire at the moment of death, at which point the property is allocated according to how the individual dictated when they were alive, or according to the dictates of their next of kin.

If they have any concerns, they must tell us in advance. If their next of kin have any concerns, they must warn us. The medical community seeks guidance from the next of kin, but not on every issue. Some issues are treated as a default.

We dispose of bodies. They aren’t permitted to rot. If there are any special considerations, the individual can let us know when they are alive or the next of kin can let us know at the moment of death. But the default is to dispose of the body. Given that lives are at stake, organ donation should likewise be the default. If there are any objections, the individual or next of kin must let us know rather than presuming an objection.

The last and most serious objection was end-of-life care. Tim Moen’s concern (and he is a first responder), is that presumed consent will result in medical practitioners altering their practice, eagerly anticipating the death of a patient to make use of the organs. I believe this can be empirically tested: Now that Nova Scotia has presumed consent, we will soon find out if this is the case.

This is a life or death issue. There are thousands of people awaiting organ donations that are going to have to die because we falsely assume the deceased wouldn’t want their organs to save lives. The reasoning against the presumption of consent must be overwhelmingly clear if it is to be considered ethical, given that people will die if the reasoning is cogent. Given that this is clearly in dispute, the ethical option is to presume consent.

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Brandon Kirby

Brandon Kirby has a philosophy degree with the University of New Brunswick. He works for a Cayman Island hedge fund service firm, owns a real estate company, and has been in the financial industry since 2004. He is the director of Being Libertarian - Canada. He is a member of the People’s Party of Canada and the Libertarian Party of Canada.