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