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Applying utilitarianism to the presumed consent system for organ donation to consider the moral pros and cons

28 October 2021
Volume 30 · Issue 19


In May 2020, England adopted an opt-out approach for organ donation, also referred to as the deemed consent system, with the aim of alleviating the demand for organs in the UK. This system dictates that those who have not opted out will have their organs donated following their death, with the exception of those meeting certain criteria. This article applies the philosophical theory of utilitarianism to the deemed consent system for organ donation, focusing particularly on topics such as that of informed consent and family refusal. Utilitarianism is a consequentialist theory that attempts to determine whether an action is morally right or wrong based on whether or not it maximises the preferences of the greatest number of people, with each person's satisfaction being considered as equal to another's.

In March 2019, the Organ Donation (Deemed Consent) Bill received Royal Assent and became an Act of Parliament. Named Max and Keira's Law after the girl who donated and the boy who received a heart, the act introduces an opt-out system for organ donation in England (Department of Health and Social Care (DHSC), 2019). In Wales, such legislation has been in effect since 2015, while in Scotland it will come into effect in 2021; it is currently under consideration by the Northern Ireland Assembly.

The opt-out system (also commonly referred to as presumed consent or deemed consent) refers to a process whereby all people will be presumed to have given consent to donate their organs after death. This excludes those who are under the age of 18 years, are not British citizens, have lived in England for a period shorter than 1 year, have registered their wish to not donate their organs (including those who have registered this wish informally with family members), or do not have the capacity to understand the changes to the system (DHSC, 2019; British Medical Association (BMA), 2021). Furthermore, the idea that this is a ‘soft’ opt-out system ensures that the consent of the family is still required for the donation to proceed, as per the Human Tissue Authority (2020) codes of practice.

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