Monday, September 14, 2009

Cass Sunstein's View of Organ Donation

Today, my column on FindLaw (here by noon) discusses some of the controversy that kept the Senate from voting on Professor Cass Sunstein's April nomination as head of OIRA until the middle of September (he came to a vote last Thursday and was confirmed).

Sunstein co-authored a book in which he suggested that we might help alleviate the organ shortage in the U.S. by assuming, in the absence of an affirmative statement otherwise, that a deceased person had been willing to donate organs to patients in need of a transplant. My column discusses the general question of "default" settings -- what we (legally and customarily) assume until told otherwise -- and how such settings manifest themselves in the contexts not only of organ donation but of medical treatment, pregnancy, and abortion as well. Selecting a default setting can reflect anticipated preferences in the real world, or it may instead reflect a policy preference. In this post, I want to call attention to the related phenomenon of presumptions in evidence law to shed light on the operation of default settings in the organ donation context.

In the law of evidence, a presumption instructs jurors that if they find some basic fact to be true (e.g., the plaintiff mailed a stamped, properly addressed letter), they must conclude that the presumed fact is true as well (e.g., the letter arrived at its destination), unless and until the party that opposes the presumption offers evidence that the presumed fact is not true (e.g., sworn testimony from the defendant that he never received the letter). As in the case of default settings in the world at large, presumptions generally either reflect things as they are (e.g., odds are that a mailed letter arrived at its destination) or "nudge" the jury toward the party that has proved the basic fact, even if the presumed fact is not especially likely to follow from the basic fact (e.g., protect life insurance beneficiaries unless there is a strong case against doing so).

Once this nudge happens, it becomes the job of the opponent to come forward and make its case rather than sitting back and automatically winning without doing anything.

With respect to the pro-donation default, a person who does not want to be an organ donor at death would have to indicate explicitly (perhaps on a driver's license, perhaps by putting it into a will), "When I die, I want my organs buried or cremated and not shared with another person whose life might depend on receiving a transplant like the one that I am denying him." Having such a default accomplishes two things. First, it makes more organs available, because many people simply go with the default, whatever it happens to be. Second, and relatedly, it forces people who wish to act selfishly -- by insisting that life-saving medical resources be buried or burned rather than given to a patient in need -- to confront that selfishness and its consequences directly.

Some of those who ultimately do not "opt out" may actually have preferred not to donate but feel a sense of shame about their inclination. Requiring an opt-out thus makes it emotionally (and perhaps socially) more costly than it would otherwise be to refuse to donate organs.

What Cass Sunstein's default switch proposal does is therefore to make explicit some of the implicit and harmful decisions that might otherwise -- and improperly -- meet no resistance. If we are to be members of a society in which we purport to care about one another's health and wellbeing, it is more than appropriate that we take steps to ensure that it is costly -- if only socially and emotionally -- to choose to be a Bad Samaritan. And it is as appropriate to place such a burden on non-donors as it is to do so to parties in the context of a trial in which some facts, once proven, shift the burden of having to come forward and offer support for a competing vision.

Posted by Sherry Colb


egarber said...

Hi Sherry,

I'm trying to reconcile the default donation position with support for inherent privacy rights.

In say, the reproductive rights arena, the default position handicaps the government -- there is no assumption that the state owns the decision in the absence of a woman's written personal rule.

Further, in the electronic communications context, privacy advocates typically prefer an "opt-in" framework to manage the use of personal information by marketers.

I can think of a few ways to clean this up, but I'm curious to read your thoughts.


Paul Scott said...

They are dead and no longer have any needs or desires for their organs. Opt-out should not even be an option.

HandsOffMyOrgans said...

The United States is a whole lot closer to an "opt out" organ donation system than most people know. Most people think you're assumed not to be an organ donor unless you sign up to be one. That used to be true, but it's not true any more.

Under the 2006 Uniform Anatomical Gift Act, an organ procurement organization (OPO) can assume you are an organ donor while they search for evidence of your true intentions. They can hook you up to artificial life support machines to keep your organs fresh, even if your advance healthcare directive says you don't want artificial life support. They can ask your family for permission to harvest your organs. They can ask a government bureaucrat for permission if they can't find your family. They can do all this even if the "organ donor" box on your driver’s license is blank.

The 2006 UAGA has been enacted in 39 states and the District of Columbia, including eight of the ten largest states by population (California, Texas, New York, Florida, Ohio, Michigan, Georgia, and North Carolina). Over 80% of the U.S. population lives in states that have enacted this law.

The 2006 UAGA stacks the deck against people who don't want to be organ donors. Unless your decision not to donate is documented in exactly the right way, OPOs can ignore your decision and ask your family or a government official to overturn it.

State organ donor registries, which OPOs must search under the 2006 UAGA, are also biased against non-donors. None of them, not a single one, will record your decision not to donate. They literally won't take “no” for an answer. operates the only online donor registry that allows you to say “no” to organ donation in a way that will stand up under the 2006 UAGA. OPOs are required under the law to check this registry. If they find your name in the registry, they’re legally forbidden from harvesting your organs.

Neil H. Buchanan said...

"The 2006 UAGA stacks the deck against people who don't want to be organ donors."

Great news!

Tam Ho said...

The SPAM analogy egarber raises was actually what popped into my head while I read Sherry's post. Of course, the CAN-SPAM Act of 2003 is actually an opt-out law, not an opt-in law, despite the privacy rights advocacy egarber noted.

Is it inconsistent to have an opt-out policy for SPAM but an opt-in policy for organ donation?

In utilitarian terms, we can think of a choice of a particular default as reflecting a determination that the aggregate benefit of the default outcome ("B") outweighs the aggregate harm ("H") in getting it wrong (with both sides weighted by the probability of each event obtaining). So BP > H(1-P), where P is the probability that a randomly selected person's desires will align with the default setting.

In the SPAM context, an "opt-out" law like the 2003 Act means that the default setting is to receive SPAM. I think it fairly uncontroversial to say that P, in this case, will be virtually 0.

The harm, H, is significant. In addition to an invasion of privacy, as indicated by egarber, there is also the harm simply of having to wade through hundreds of emails in your inbox every day, some of which have viruses or links to viruses that can create catastrophic damage to your computer. SPAM costs businesses significant amounts of productivity.

The only way structuring the SPAM Act as an opt-out law makes sense, then, is if B, the aggregate societal benefits of having people receive SPAM by default, is so high that BP > H(1-P) is still true, even though P is extremely low and H is significantly high.

In the organ donation context, B, saved lives, is extremely high - it's hard to imagine higher stakes. H, the harm in taking the organs of a dead person who, when alive, did not want his organs to be taken upon his death, I submit is 0, or very low (I see the harm here as at best non-existent because dead persons cannot be harmed, just as they cannot be murdered, and at worst, as a frustration of desire, ala Thomas Nagel's argument for why death is an evil). So here, one would have to imagine a near-zero P, that is, that just about NO ONE wants to donate their organs in order to make BP > H(1-P) untrue under the opt-out regime envisioned by Cass Sunstein.

And if H turns out, metaphysically speaking, to be 0, notwithstanding people's stated preferences while they are alive, then BP > H(1-P) is by definition true when the default is opt-out (because we know P is not only greater than 0, but significant, because there are a significant number of people choose to donate their organs).

Sherry F. Colb said...

Nicely put, Tam! On egarber's question, the default rule (re organs and reproductive rights) is not whether the government or the individual owns the decision; it is whether we assume, absent evidence to the contrary, that the individual wants to sacrifice his or her bodily integrity. The right of privacy means that a person who does not want to sacrifice his or her bodily integrity and says "no" must have his or her wishes obeyed. For example, the default rule that "no means no" in sexual encounters translates into a "silence means yes" rule, and this is actually the more progressive of laws on the books, where force or threat need not be proved, yet we wouldn't say that people lack a privacy right in deciding with whom to have sex.
To play devil's advocate on the question of whether people should even be able to refuse to donate organs, I'd suggest that when people die, we do tend to honor their wishes regarding their property (so that, for example, they can leave millions of dollars to an already-wealthy child (who will, say, place the money under a mattress) rather than give the millions to a fund to provide cancer treatments for poor patients), and we might consider their organs to be an especially important form of property. I'm not sure I find this argument persuasive, but if we honor other dying wishes regarding a person's possessions, I'm not sure we are being consistent if we fail to honor their wishes regarding their body parts. (One response might be that unlike other kinds of property, body parts may not be sold on the market, and lacking the alienability of ordinary property, can serve no concrete purpose for the beneficiaries).

Tam Ho said...

Thank you, Sherry. I actually forgot to answer the question I posed re: consistency. I suppose it's not technically inconsistent to have an opt-out regime for SPAM and opt-in for organ donation, but it does seem backwards.

Your implicit comparison of a mandatory donation law to the estate tax made me wonder about the possibility of avoidance behavior. I can't imagine that anyone would purposely damage their body while alive for the purpose of avoiding mandatory post-mortem donation. It might encourage intervivos donation (a friend choosing to donate a kidney to his ailing friend) to avoid having it donated to a stranger upon death, but that would generally be a good thing and in furtherance of the law's purpose anyway. (I'm thinking of the Curb Your Enthusiasm Episode where Richard Lewis needs a kidney and Larry David and Jeff Green both try to avoid being the friend who has to donate it.) I can also imagine people moving to another state at the end of their lives to avoid mandatory organ donation. Putting aside the practical fact that those who can ascertain the time of their death with that level of precision are either too ill or too old to be donation candidates anyway, it seems to me such a move might raise an interesting long-arm jurisdictional question.

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