Shall our society adopt the policy of implied consent to obtain organ donors?
Opposing Policy of Implied Consent
The problem of lack of donor organs surely remains urgent for the majority of countries in the world. The development of transplantology and its effectiveness largely depend on the Ā legislative recognition of the implied consent or non-consent on the removal of organs after death. From our standpoint, state shouldn’t make such decision on behalf of its citizens, especially in such a personal matter, dealing with the conscience of every person, as well with personal right and freedoms.
Until recently, the predominance of state interests and science over the rights, freedoms and interests of individual personality has been accepted in our society. But today the situation is changing. An example of recognition of the priority rights and freedoms in the sphere of health care is the “Convention on Human Rights and Biomedicine”¯ adopted by the Council of Europe in 1997. Article 3 of the convention runs that welfare and interests of the human being prevail over interests of society or science. This principle corresponds to the fundamental law of moral relationships between people, which assumes that a human cannot be considered as a means to achieve the goal of another person (Kant’s “categorical imperative”¯), as well as it corresponds to the ethical understanding of a human being as personality (rather than a thing) who has freedom, will and dignity.
At the same time, the extent of risk associated with ignoring non-consent of a dying person to transplantation of his organs or tissues, expressed during his life time, is great. The implied consent actually allows the removal of organs in case the deceased person, his relatives or legal representatives haven’t expressed their non-consent. In other words, there is no factual consent, but it’s only implicit, and the transplantation takes place against the will of donor, without requested and received consent. For the ethical consciousness, the action directed at the personality of the deceased human and are carried out without his consent, is defined as violence (Felt, 2009).
Thus, transplantation of organs without the factual consent of the person is the forcible conversion of the deceased person into donor, which is a violation of the basic principle of moral relationships between people – the will and consent of the person to enter into such relationships. The researches conducted in the UK (supporting the policy of implied consent) show that although 90% of respondents are in favor of transplantation, 40% of their relatives are not ready to give permission for the removal of organs (Neades, 2009). Experts also acknowledge that there is a potential conflict of interests between medical personnel, fighting until the last moment to save lives, and those who would seek to maximize the number of donors, while the ethics of health care should not involve the conflict of doctors, perceiving their patients as potential donors (Felt, 2009).
The specificity of ethical issues in transplantation is the presence of the tripartite relationship: recipient-donor-doctor. Informed consent for transplantation is required not only from the recipient, but also from the donor who during his life gave his consent to use his body after death, because the absence of consent factually means the absence of consent (Hoeyer, 2009). This agreement or disagreement must be acknowledged. This is the respect for human beings, which is not limited to the relative time of body’s viability, but is the ability to keep alive the memory of the will, desires, ideas, and thoughts of any individual.
The feature of a moral society is the inability of doctors to violate the human right to the free consent of being a donor and to the absence of consent in any form. Extension of human life should be managed through conscious, but not implicit will of another person to save human life. Only such moral will, reflected in civil law, may become a barrier for both implicit and real moral crimes. Thus, the so-called implied consent of a potential donor to the removal of organs adopted in the legislation of several countries should be considered an unacceptable violation of human freedoms.