Life is a numbers game for the more than 117,000 people whose names are on the national transplant waiting list.
Each day about 92 people on that list receive a transplant.
Each day nearly 144 new people find themselves added to the list.
Each day approximately 22 people on that list die while waiting for an organ.
These numbers do not bode well for many who may one day find themselves on that waiting list.
So, some organ donation activists are trying a new strategy in an attempt to increase the number of available organs for transplant.
They’re asking legislators to pass laws that would automatically place people on the organ donation list unless they decided to “opt out.”
Opting out, instead of in
According to the U.S. Department of Health & Human Services, 95 percent of adults favor organ donation.
Less than half, however, actually make the effort to enroll.
In addition, lawmakers in some states have searched overseas to learn how other countries deal with the issue.
They have learned that some countries with higher organ donor rates use an "opt-out," or presumed consent, system.
Under this setup, you are automatically an organ donor unless you make the effort to take your name off the list.
The United States currently uses an explicit consent, or “opt-in,” system for organ donation, although on a state-by-state basis.
By comparison, studies show a 25 to 30 percent increase in organ donation rates for countries where presumed consent is the norm.
In a 2012 survey by the U.S. Department of Health & Human Services, support for presumed consent increased from 42 percent in 2005 to 51 percent in 2012.
Those who said they would opt out of the system fell from 29 to 23 percent.
Reasons for not participating
About half of those who oppose presumed consent do so because they favor individual freedom of choice, consider the program a violation of their rights, or have a basic distrust of government.
There is also concern about losing potential donors who mistakenly choose to opt out because they did not completely understand the meaning of opt out as it relates to organ donation.
Colleen Murphy, RN, MSN, NE-BC, manager of administrative liaison at Sharp Grossmont Hospital in California, told Healthline, “For those individuals who weren’t properly informed at the time that they made the decision to either opt out or ‘presumably’ opt in, the conversation would now be coming up at a vulnerable time with little information and little to no choice in the matter.”
“Whereas,” Murphy continued, “if an individual doesn’t opt in on their driver’s license [under the current system], but they are a viable candidate, the family members can be educated about the process and make an informed decision for organ donation if that is what they choose to do.”
Concerns like this might explain why lawmakers have been unsuccessful at passing presumed consent laws during recent legislative sessions.
Jason Villalba, a member of the Texas House of Representatives, was one of the sponsors of HB 1938, which failed to pass out of committee.
The bill proposed to change the current opt-in system to an opt-out one for all persons 18 years of age or older.
Ben Utley, legislative director in Villalba's office, said “the bill simply changed the question from “Would you like to opt in to organ donation?” to “Would you like to opt out of organ donation?”
Some constituents expressed concern that the legislation would immediately affect them if it were to become law. Utley was clear in stating that was not the case.
“Nobody’s status as an organ donor would change until they go get a new license or renew their license and they are asked the question again,” Utley told Healthline.
In Connecticut, Senator Ted Kennedy Jr. introduced a bill this past session that would have enabled all state residents to automatically become organ donors upon their death.
The bill would have provided for a registry where residents could go to opt out.
Kennedy's bill also failed to pass out of committee.
Similar legislation failed to pass during the most recent legislative session in Vermont. The Committee on Human Services received the bill in January but never took any action.
Some recent casualties of the presumed consent debate include:
- In 2016, New Jersey A2608 died in committee.
- In 2014, Virginia HB 154 was stricken from the docket.
- In 2011, Colorado SB042 was postponed indefinitely.
- In 2010, Illinois SB3613 died in committee.
An alternate suggestion
In June 1993, the Presumed Consent Subcommittee of the U.S. Department of Health & Human Services Ethics Committee issued a report dealing with the issue.
The subcommittee did extensive research on three proposed methods of gaining consent for organ donation, which included:
- presumed consent
- routine salvaging
- required response
The subcommittee chose not to endorse a policy of presumed consent based on three main considerations.
First, public opinion surveys at the time found that it was unpopular with the public.
Second, after researching other countries that utilized presumed consent, the subcommittee was not impressed with efforts made to “protect the rights of objectors to donation.”
Third, the subcommittee decided that it preferred to endorse an alternative to presumed consent called “required response.”
Required response would replace state-level programs with a centralized national program that would record the preferences of all citizens.
Medical personnel would reference this information, provide it to family members if needed, and use it when it became necessary to do so.
There is not yet a national registration program as recommended by the subcommittee.
However, most states, by providing for organ donor registration on their driver’s license application, use a variation of required response.
Are we ready for change?
What would happen if presumed consent for organ donation were to became law throughout the United States?
There is some concern that the newfound supply of donors could overwhelm the system.
Murphy agreed that opt-out programs could indeed backfire.
“With so many deaths happening daily, if everyone was presumed to be an organ donor, there aren’t enough organizations to handle the logistics of the organ donation process,” she said.
Yet, despite concerns, public attitudes toward presumed consent may change.
If this law were to take effect, then it is reasonable to predict that there would be new attempts to pass opt-out organ donation legislation.