A Painful Trade Off: the Active Organ Donation System and Bodily Integrity

THE HAGUE – Recently, the Dutch lower house adopted a bill which introduces an ‘active organ donation system’. Currently, the Netherlands has a system of passive organ donation. Individuals do not become organ donors unless they have chosen to register as one, or if they have given permission to their families to make that decision after their death. This led to a number of people simply neglecting to make a decision on this issue. The result is a shortage of organs, which leads to the premature death of 150 people annually.

The active donation system aims to change this. Should the senate approve the bill, people will receive two letters urging them to make a decision to register as a donor, a non-donor, or whether the family should decide. If they do not respond to both letters, they automatically become a donor after they die, unless their family objects at that time. This means that once doctors have diagnosed someone as brain dead, which is the moment when there is no more electrical activity in the body, surgeons can remove organs from the corpse.

The issue of organ donation has led to an important moral discussion, literally about life and death. One argument, based on Article 11 of the Dutch constitution which enshrines bodily integrity, is that the government has no right to make decision about the body of an individual. Many people think that if this bill passes in the senate, the government has decided that it owns the body of its citizens. They believe that while a person is alive, he, and only he, should decide what to do with his body after he dies. Even if he refuses to make a decision on this topic, that is his choice. Proponents of the new plan argue that the government does allow people to refuse to make a decision, in which case the default is just organ donation. Moreover, the organ donor is dead, so is it appropriate to ponder the bodily integrity of a dead person? Furthermore, you can still decide to refuse to donate with the stroke of a pen, the current law only forces you to make that decision.

A second concern centres on the principles of traditional medical ethics. This means that market solutions, in which people pay for organs, are deemed unethical, because they could clash with the principle of giving everyone the best healthcare possible, as it might give some people less healthcare than others. This could be covered by including organs in the healthcare insurance plans. Yet, many people feel highly uncomfortable with the commodification of the human body. Poorer people could feel the need to sell their organs in order to pay their rent or their food, which should not be a choice anyone has to make.

Similarly, one could argue for a system in which only those who bothered to give any response, be it as a non-donor, a donor, or family choice, receive organs in case they need them. Again, this means that some people will not receive the best possible health care.

On top of these issues, some see both ‘organ markets’ and exclusion of those who do not register, as forcing people to make a decision about bodily integrity. They think that the government does not have the right to force people to make a decision about their body at all. Others say such systems will only incentivise people to make a decision, while respecting the decision to not donate organs. Where does incentivising end, and where does oppression start? The 10% of the people who registered as not wanting to donate probably will continue to register as such, while those who surely want to donate can also register as such. That leaves a large group of people who do not make a decision. The real question is whether most of them really care, and if they do not, whether the active donor system changes their happiness at all. It seems like it does not, while the active donor system would save lives.

Thirdly, the new system forces families to decide whether to donate the organs of their loved one who just passed away. That is a gruesome idea indeed, because it puts a lot of pressure on people who are already having a terrible time. Yet, delegating the responsibility of a decision to the family already exists under the current system.

Lastly, we face the grim reality that 150 people die every year in this country because of a lack of donated organs. This means we are already failing to give everyone the best possible health care. We are talking about scarcity here, so, as economics teaches us, we have to make trade-offs. People are already dying, and it seems highly unethical to give those who refused to register at all the same priority as those who did bother to register, be it as a donor, a non-donor, or family choice.

So, we face a trade-off between bodily integrity, traditional medical ethics, and giving everyone the best possible health care. If we respect people’s bodily integrity, 150 people die per year. If we introduce a market system those 150 people will mostly be poorer people, unless organ donation will be covered by healthcare insurance. Still, organ sellers will still predominantly be poorer people, as they will need the money from selling their organs most.

The commodification of the human body is not a step easily taken. If we introduce a system in which only those registered as a donor receive organs, we reduce the number of organs needed, while possibly incentivising people to register in order to gain the right of receiving organs. However, some will feel that this still forces people to decide, thus violating their bodily integrity. Moreover, many, such as the mentally challenged, or illiterates, will not receive the healthcare they need and deserve, because they do not know how to register. Lastly, if the senate adopts the active donation system, people will be forced to think about donating organs, or they will automatically become organ donors. This does indeed violate their bodily integrity to some degree, even if all it takes to register as a non-donor is marking a square on a form and send it to the government.

So, we are in a situation where scarcity exists, the potential supply is high enough, incentives for people to enter the ‘market’ are seen as unethical, and the government cannot intervene, because it would violate the constitution and it would disregard the bodily integrity of its citizens. Meanwhile, 150 people continue to die every year, while their lives could be saved. However, perhaps Arjen Lubach, the Dutch Jon Stewart, saved the day, after he explained how Illinois uses a system in which people are forced to make a choice on whether to donate, or not, when they get their driving licence. Hopefully this compromise of being forced to make a choice on this topic, without being automatically registered as a donor, is at least more palatable to opponents of active donation.

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