“Many countries, including Malta, maintain their opting-in system. It just does not seem right that the state can dispose of your body as it wishes. Indeed many people would agree that once they are dead, someone might well take their organs, and this is very altruistic of them. But to have a law which obliges you, introduces a factor whereby we feel our rights can be violated”
Last week we had several references to organ donation again, not least a seminar for healthcare professionals organised, which explained current legislative tools and the situation in Malta. I wish to focus here on the so-called Opting-in/Opting-out system. In Malta we run an opting-in system whereby people choose to donate their organs. As such there is as yet no respect for the individual’s wishes. Donor cards are not yet legal (although efforts are being made to make them so) and if one has a donor card, the family can ‘over-die’ the wishes of a deceased person. Moreover one may not wish to donate his or her organs but should an accident occur, if no one makes reference to this, the family will have a right to donate the organs. Clearly such ethical practices do not concern the majority of the population, but once you are in the situation it would be nice to have proper legislation in place.
Conversely in systems where you ‘opt out’ there is a presumed consent. But this nice phrase ‘presumed consent’ is being used only recently. Up until a few years ago, only countries like China had an opting-out system. In this system, so we used to say, you are the property of the state and once you die the state has the right to take away your organs. You do have a chance to say that you do not wish to – by opting out of the system when you are alive. But if you do not know about the system you are considered to be the property of the state. As long as there is no positive effort to educate the public continuously, then people will not know and this is what makes it morally problematic.
In the USA, many states introduced a ‘mandated choice’; that is, you would have to state whether in the case of an accident which causes your death, you would be willing or not to donate your organs, and which organs. This is usually mandated, i.e. you have to make the choice, when you apply for your driving licence.
In Europe, this is now being discussed again and we will soon have an EU directive to guide countries on legislation. After criticising China so much, some EU states, such as Spain, Austria and Belgium, have introduced opting-out systems as well. Many countries, including Malta, maintain their opting-in system. It just does not seem right that the state can dispose of your body as it wishes. Indeed many people would agree that once they are dead, someone might well take their organs, and this is very altruistic of them. But to have a law which obliges you, introduces a factor whereby we feel our rights can be violated. For example, I would have no problem in donating organs, but not my corneas. Clearly, even though I am a scientist, there is something which makes me not want to do it. I need not have to explain myself to society or be embarrassed or indeed give any decisions.
Germany it seems has proposed an opting-out system but they went even further. If you wish to opt out, you will be jeopardising your chances of receiving an organ if you need one – indeed some will say that you forfeit your right. If such thing had to occur, and if this is the way we will opt to do social justice, what is the point of bioethics? Should we not treat lung cancer patients because they were, and perhaps still are, heavy smokers? Should we not treat diabetes if you do not manage to lose weight? Justice in healthcare does not impose penalties on people, and to hear a proposal from an EU state which should know better, is scary to me to say the least.
True, it sounds very egoistical if someone says they do not want to donate organs, but then should they need an organ, would be willing to receive one. But the alternative to impose a penalty shifts us away from donating organs as an altruistic act and then we might as well introduce the sale of organs – which we do not do, not because selling organs is inherently wrong, but because it introduces a factor of unfairness – it would be the most vulnerable and poor who would be obliged to sell their organs. You can imagine a situation where a father would sell a kidney in order to build a better house for his family in a poor country. A proposal was once made in the USA to have a central agency which would buy organs at a fixed price and would then still give the organs free to the ones who need them. But one can imagine that market forces will make the organisation seek organs from poorer countries. Even if they had to legislate that they buy organs only from their own country – only the most vulnerable and in need would do so.
If I am given a choice to opt out but at a dear price, there is a coercive factor which would make people stay in the system against their will. Opting out is in itself immoral because it brings more organs. Statistically if from a sample of a hundred people, 15 want to donate organs, whether you have an opt-in or opt-out system should not matter. The fact that opting-out systems bring in more, shows that they prey on people’s ignorance of the facts. Hopefully the EU directive will drive us away from this abhorrent cannibalism.
Pierre Mallia is Associate Professor in Family Medicine, Patients’ Rights and Bioethics at the University of Malta; he is also Ethics Advisor to the Medical Council of Malta. He is also former president of the Malta College of Family Doctors.