[Note: This is the third blog post comparing opt-in and opt-out organ donor registration. The series starts here.]

The previous blog post argued that switching from opt-in to opt-out could increase the number of people on the organ donor registry but could actually reduce the number of organs recovered.

That is because an opt-out process creates ambiguity about the intent of those on the organ donor registry. This would make the Uniform Anatomical Gift Act (UAGA) harder to enforce.

One way to avoid this problem is to couple the use of an opt-out-donor registry with increased training of clerks at the DMV to inform each customer that they will be added to the registry unless they opt-out. In addition to training costs, there will be increased labor costs since each customer transaction may be about a minute longer as the clerk explains what the organ donor registry is and sells the benefits of organ transplantation to the customer.

This extra effort to educate the public is needed to get implicit consent from the driver. Unlike presumed consent where the customer is never told that a decision is being made for them, implicit consent creates a true decision. Unlike mandated choice where the customer is forced to make a cognitively complex choice in a short time span, implicit consent relies on framing to make the default option (the one most people will pick) the one that is most beneficial for society.

Using the same hypothetical data presented in the prior blog posts, I have created a table showing the organ recovery rate when combining opt-out with implicit consent. Assume that an opt-out registration system results in 88% of drivers registering to be organ donors (same rate as in table 2 of that blog post). Of these, the OPO is able to get 99% of families to cooperate (same as in table 1). The OPO does not approach the families of patients who were on the opt-out list (same as in table 2). The overall organ recovery rate is 87%, significantly higher than the 81% rate in the opt-in case or the 79% rate for opt-out without implicit consent. This appears to be a big win.

    Implicit conse nt case             Patient on organ registry
Yes No Row total
agrees to
Yes 87
donation No 1
Col. total 88 12 100

By combining opt-out with implicit consent, 88% of drivers register and 87% of organs are recovered

What impact could the combination of opt-out and implicit consent make in the United States? That is difficult to predict since no state has attempted to implement them together. Legislation was introduced to implement opt-out and presumed consent in New York last year by an assemblyman whose daughter had received two kidney transplants. But the bill never made it out of committee. (See debate in New York Times May 2010.) Similar legislation was introduced in Colorado earlier this year but was withdrawn after public protests and consultation with Donor Alliance, the local OPO.

Why isn’t the combination of opt-out and implicit consent gaining political traction in the U.S.? Most likely it is because the training required to implement implicit consent correctly would be expensive. Even with training, at least one unwilling donor family will probably request an injunction against the OPO. The potential result of this litigation was described in the last blog post. The resulting media coverage and lobbying would likely put pressure on the state legislature to eliminate the opt-out nature of the registry. It could also cause them to revoke the UAGA. This could make it harder for OPOs to recover organs than before the switch to opt-out since they currently can recover organs without consent of the family under opt-in.

Finally, if the driving public feels it is being coerced into becoming donors, it may result in falling donation rates (higher opt-out rates) and reduce trust in the healthcare system. Overall, the combination of opt-out and implicit consent just doesn’t seem like a winning strategy to increase organ recovery rates.

Much thanks to thank Alexandra Glazier, Vice President & General Counsel at The New England Organ Bank, for clearly explaining that adopting an opt-out registration process does not automatically result in adopting presumed consent. Each issue needs to be analyzed separately.