(AMA, 2005). The Council believes that unless data from these pilot studies “suggest a positive effect on donation, neither presumed consent nor mandated choice for deceased donation should be widely implemented” (p. 5). At this point, the Council contends, it is unknown whether implementation of presumed consent (or of mandated choice) “would positively or negatively affect the number of organs transplanted” (AMA, 2005, p. 5).
The following is a line of argument that expresses the concern that adoption of a presumed-consent policy might be counterproductive in the United States: some individuals now fail to sign donor cards because of their distrust of the system, including their fears that they might not receive the best possible care or that their deaths might even be hastened if they were on record as organ donors, but they may not be opposed to a family decision to donate their organs after their death. Under a presumed-consent policy, some of these same individuals might opt out to avoid the perceived risks of being on record as an organ donor (through their silent or tacit consent) (Wells, 2005); this would prevent familial donation. Therefore, not surprisingly, major questions arise about whether it is wise to seek a dramatic change in a system that works fairly well, although not perfectly. These questions are particularly challenging when the changes could possibly be ineffective or even counterproductive in part because of mistrust and distrust.
Preliminary results from the 2005 National Survey of Organ Donation suggest that about 30 percent of respondents would opt out under a presumed-consent law. In response to a question about whether they would register as “nondonors” under a presumed-consent policy, 30.9 percent said “yes,” 63.1 percent said “no,” and 5.9 percent said “I don’t know” (Wells, 2005). If, indeed, over 30 percent of the population (which could perhaps be higher if many in the undecided population settled on “no”) were to opt out, it is possible that fewer transplantable organs would be available under a presumed-consent policy than under the current opt-in policy of express consent. (These data must be used with caution, because the responses do not reflect the results of a vigorous and extensive educational campaign, which would be essential for the implementation of a presumed-consent law.)
At present, under the opt-in policy in the United States, the available evidence does not indicate that a large number of people who fail to express their wishes to donate through a document or registry actually forbid their families from donating their organs after death. As a result, family members—rather than individuals while they are alive—are the ones who most often give express consent for organ donation postmortem. If, however, under a presumed-consent donation policy approximately 30 percent of the population were to register as nondonors, almost one-third of the potential donors would effectively block their families from donation.