How required choice for organ donation actually works in practice

California’s new organ donor law, passed in part because of Steve Jobs, creates the nation’s first live donor registry for kidney transplants, and includes a provision requiring drivers to decide whether or not to be an organ donor when they renew their licenses. A bill supporter thinks this switch will double the number of donors. In Texas, a similar switch doubled organ donors in less than a year (though Texas started from a base of just 2 percent – hey, it’s still a big state.)

Over at Marginal Revolution, Alex Tabarrok’s take on required choice “is mixed but I hope it works.”

I see it as follows. The benefit is that if a potential donor has said yes to organ donation then next of kin almost always agree to their wishes so if more people positively affirm that is good. The cost, however, is that now “no” really means “no” and next of kin will presumably agree to that as well. Previously, next of kin might have said yes to non-signatories.  Let’s use some back of the envelope figures:

100 potential donors
20 signed organ donor cards
80 do not sign but, among these, half the families say yes so 40.

Total: 60 donors.

So with declaration you need more than 60 to agree to be organ donors, i.e. a huge increase in those saying yes.  It could happen if what people say on surveys about supporting organ donation is true but I would have been much happier with even a small incentive to sign.  How about a free iPhone for signatories?  Or at least some more minutes!

Yes, more iPhones please! Tabbarok has a valid point, in theory, but only if required choice works on the front lines of bureaucracy the way that he says it does. So far, it does not. Along the spectrum of opt-in-to-presumed-consent policies, the more moderate required choice is still a new option and could evolve.

As implemented, “required choice” does not force a person to answer yes or no. You can refuse to answer, say you aren’t sure, say you want to decide later. Those are all treated as “not yes” by the DMV staffer. What’s with classifying them as “not yes”? That will become clear shortly.

Right now, there are two reasons why the cost that Tabarrok points to — “that now ‘no’ really means ‘no’ and next of kin will presumably agree to that as well” — is not actually being paid.

The first reason is the spread of first-person consent laws, which according to Donate Life America, are now in all 50 states. These laws basically say that if a person agrees to be organ donor those wishes must be respected. A family can’t overturn them (or would require a herculean lawyer to help with the lift). The second reason is that the required choice policy doesn’t officially register a “no” response – at least that is how it works in Illinois. A person is asked if he wants to be a donor. If he says yes, his name is added to the donor registry. If he says no, his name is not added to the registry. It is not added to a separate non-donor registry. In effect, it gives doctors another chance to ask family members if they’d like a person’s organs donated after death, even if that person told the person at the DMV some years ago she didn’t want to be an organ donor.

A similar practice will apply with the California law. The license application will

“contain a space for the applicant to enroll in the Donate Life California Organ and Tissue Donor Registry. The application shall include check boxes for an applicant to mark either (A) Yes, add my name to the donor registry or (B) I do not wish to register at this time. In addition, the DMV: “shall inquire verbally of an applicant applying in person … at a department office as to whether the applicant wishes to enroll in the Donate Life California Organ and Tissue Donor Registry.”

Readers can obviously offer their own critiques about the wisdom and ethics of this practice.

In combination, the two laws work to reinforce each other. Required choice boosts the number of people who agree to be organ donors vis-a-vis the original opt-in policy. With first person consent laws, the threat that large numbers of these organs will not be available because of family objections is removed (even if not a lot of families would overrule a member who expressed a desire to donate). With a “yes” registry, but not a “no” registry, a person has to take independent steps to document her unwillingness to be an organ donor. At the hospital, after death, the people who said they didn’t want to be donor when they got a new license are treated the same as the people who said, “I don’t know” or “I’d like to decide later.”

Required choice policies raise questions about whether to treat a “no” answer with the same binding symmetry of a “yes” answer, and whether strong records of those answers should be kept. To debate that, though, it’s important to know what required choice is as a policy idea and as a policy fact. Or for now, to maybe start giving it a different name.

Ps. Steve Jobs originally wanted a presume consent rule.


  • Svit

    THE GOV wants your appendix…

  • Lahoma Stapleton

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