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21 HEC F. 1 (2009)

handle is hein.journals/hecforum21 and id is 1 raw text is: HEC Forum (2009) 21(1): 1-26 DOI 10.1007/s10730-009-9091-z © Springer 2009 Presumed Consent: State Organ Confiscation or Mandated Charity? Paul M. Hughes Introduction Recent discussions among bioethicists, transplant physicians, public policy experts, and an increasingly informed public about the dearth of viable transplant organs has focused attention on the various mechanisms that might be adopted to increase the supply of such organs.1 One suggestion is that a policy of presumed consent should be employed to at least increase the supply of transplant organs, even if it would not completely solve the problematic shortage. Presumed consent, in general, is the proposal that unless people explicitly refuse to allow their viable organs to be harvested upon their death, the state may take those organs if there is a need for them.2 In this paper, I discuss the nature and scope of the presumption being made in presumed consent, whether and in what sense those subject to it truly consent to the harvesting of their viable organs, and whether the proposal presupposes private property rights in one's body and body parts. I then turn to the questions whether a policy of presumed consent is tantamount to altruistic organ donation and whether such a policy constitutes the unjustified confiscation or theft of persons' body organs. I conclude that there remain significant theoretical obstacles to justifying presumed consent as well as important practical impediments to implementing such a scheme. The Presumed Consent Proposal Although a policy of presumed consent might allow for the harvesting of non-transplantable body organs, parts, or products, and may also involve living donors, I shall focus more narrowly on presumed consent in the context of human organ transplantation in which viable organs are harvested Paul M. Hughes, Ph.D., Professor of Philosophy, Department of Literature, Philosophy, and the Arts, University of Michigan-Dearborn, 4901 Evergreen Road, 3011 CB, Dearborn, MI 48128-2406; email: pmhughes@umd.umich.edu.

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