Presumed Consent: Bill Would Grant Government Ownership of Your Organs for Donation

Bioethics   |   Wesley J. Smith   |   Feb 27, 2015   |   2:13PM   |   Montpelier, VT

I know my headline is a bit provocative, but there is a point.

A bill has been filed in Vermont for presumed consent to organ donation, and it would grant an explicit ownership interest in the organs of all dead Vermonters to the organ transplant system. From, H 57:

All Vermont residents 18 years of age or older shall be presumed to consent to making an anatomical gift of some or all of their organs, eyes, tissues, or a combination thereof upon their death for the purpose of transplantation, therapy, research, or education.

If someone doesn’t want to be an organ “donor”–they have to take affirmative action to say no, rather than–as is the law now in every U.S. state–opt in by saying yes:

(a) A Vermont resident may refuse to make an anatomical gift of the 10 individual’s body part or parts by: (1) including a specific refusal in an advance directive…

(2) creating a written record indicating that the individual is unwilling to 15 make an anatomical gift…(3) including a specific provision in the individual’s will..

(4) completion of an anatomical gift refusal form…or, (5) any form of communication made by the individual during the 4 individual’s terminal illness or injury addressed to at least two adults, at least 5 one of whom is a disinterested witness. .

That isn’t “donation.” It is conscription.

Presumed consent apparently works well in Spain and some other more communitarian-oriented countries, but it would be a disaster here:



1. Presumed consent would sow greater distrust in the already profoundly distrusted health care system. If you think people are worried about death panels now, wait until people perceive that their deaths could be considered to have greater value than their lives if profoundly disabled or terminally ill.


2 Presumed consent could impact how medical professionals viewed the moral value of the most seriously ill or disabled patients. Such a system would amplify the already existing moral crisis in medicine caused by the ”quality of life”ethic and utilitarianism.

3. Imagine the impact of coupling presumed consent with futile care theory, in which doctors/hospital bioethics committees are empowered to withdraw wanted life-extended care based on “quality of life” and financial considerations

4. Presumed consent would lead to contentious litigation by grieving (or greedy) family members.

5. Presumed consent would couple assisted suicide and organ harvesting without consent. Vermont has legal assisted suicide. Would such dead people then be subject to organ harvesting? Belgium and Netherlands already harvest bodies made dead by euthanasia (with consent). This bill would allow a coupling of killing and harvesting without consent.

The government and/or medical bureaucracies should have no ownership claims to our remains. Presumed consent is the wrong prescription for the organ shortage, and indeed, could push people to opt-out of the organ donation program who might otherwise have opted-in. Note: Wesley J. Smith, J.D., is a special consultant to the Center for Bioethics and Culture and a bioethics attorney who blogs at Human Exeptionalism.